American immigration law and policy have been transformed over the last four years like no other domain. Through the presidency of Donald Trump, restrictionists have controlled the federal government’s megaphone, blaring dire warnings about the immigrant threat to the security and culture of the country. As the head of the executive branch, President Trump controls a massive deportation state and a sprawling bureaucracy that provide him and his advisors with the institutional capacity to bring their vision into being.
Courts and commentators have assailed the policies of this Administration as assaults on the separation of powers and the rule of law, a critique that emphasizes encroachments on the legislative prerogative and violations of legal process. While this rule of law critique is urgent, Trump’s immigration policies also pose a more transcendent threat to our democracy. By making full use of the extraordinary power the President possesses over immigration policy, the Trump Administration has set out to destroy a vision of the American polity central to the nation’s democratic vitality—a vision of a nation open to newcomers and its own expansion without regard to race or wealth and cognizant of its obligations of humanitarian protection. Challenging the Trump agenda on rule of law terms alone will not be enough to match this threat, not least because much of what Trump has accomplished has relied on a legal framework that he has exploited rather than breached.
The Trump Administration has zealously used powers expressly delegated to the presidency to advance its insular vision. With section 212(f) of the Immigration and Nationality Act, which authorizes the President to deny entry to any “class of aliens” if he deems it in the nation’s interests, Trump inaugurated his term by blocking the entry of all nationals from several majority-Muslim countries. With its broad reading of this statutory power affirmed by the Supreme Court in 2018, the White House has invoked the same power to try to exclude immigrants who might not have access to health insurance and to suspend the legal immigration of would-be family immigrants and legal workers to protect the employment prospects of Americans in a labor market devastated by COVID-19.
One need not subscribe to an open-borders worldview to see how Trump’s use of the suspension power—to enact his campaign promise to shut down Muslim immigration, or to apply wealth tests to new immigrants—shrinks the American concept of belonging, for those both inside and outside of the country. This same goal of closing off the polity pervades other recent uses of administrative power, too, as with the new rule from the Department of Homeland Security reformulating the definition of what constitutes a “public charge,” a finding that renders an immigrant inadmissible. The Trump rule would exclude from permanent residency immigrants who have utilized a range of public services that have become central to the liberal social compact. Like so many of the Trump initiatives, this departure from the long-standing, more limited definition of public charge is the subject of litigation. But precisely because the legal power undergirding many of these efforts is contestable, our laws give restrictionists openings to reshape the very outlines of our society, excluding numerous non-citizens who already have contributed to the country’s wellbeing and prosperity.
The Trump Administration’s enforcement and deportation policies also emanate from the desire to shrink the polity, by excluding unauthorized immigrants from any long-term vision of the nation. In our new book, Adam Cox and I show how our massive enforcement system, under which nearly half of non-citizens present in the country are deportable, has empowered the President to control immigration policy. The Trump Administration, by promising to use its arrest, detention, and deportation authorities to their fullest effect, has declared all unauthorized immigrants potential targets of deportation, perpetuating fear in immigrant populations and reminding them of their contingent, unstable presence.
This maximalist enforcement agenda, despite often hewing to the letter of the law, rejects two crucial tenets central to a humane and democratic order. First, the Administration has largely repudiated forbearance as a value in law enforcement, dismissing the idea that the state sometimes ought to restrain its use of power because humanity and practicality require it. This idea animated DACA, which large majorities of Americans intuitively grasp is the only proper way to treat people who have been in the United States since they were children, whether they have formal legal status or not. Second, the Administration has been hostile to the goal of expanding the polity to prevent persistent inequality—a project that requires recognizing immigrants present outside the law as eventually having a rightful place in the country as a result of their settlement, contributions, and ties. The Trump enforcement rhetoric instead communicates a belief that these immigrants’ violation of the law defeats their claims to voice and belonging. Of a piece with the Administration’s concerted efforts to make citizenship or legal status relevant to the 2020 Census count, and thus to erase certain immigrants from representation and recognition, this rejection of prospective inclusion is a promise of ongoing subordination, and racialized subordination at that.
Though the attempted rescission of DACA has generated high-profile litigation and public opposition, the Trump policy that has most viscerally unsettled Americans has been the separation of children from their parents at the Southern border with barely a plan to track their whereabouts, in the name of controlling the unlawful entry of mostly poor and supposedly violent people. This assault on basic human decency has also been apparent in a much broader attempt to shut down refugee and asylum law, through a collection of policies that turns the nation’s back on another of our core commitments as a democracy: fulfilling our obligation to extend protection to those whose governments are unable or unwilling to provide them a foundation for basic human flourishing. This obligation arises not only because of our relative wealth and stability, but also because the United States has played a role in or benefitted from many of the destabilizing events that have produced the world’s refugee flows.
While the Trump asylum policies resist the spirit of protection animating our system of laws, some of what the Administration has accomplished has foundation in existing law, even as the policies stretch the law’s formal limits. Trump’s largely successful efforts to shut down the refugee resettlement program is supported by powers granted in the 1980 Refugee Act. Trump’s first Attorney General undid years of effort to protect victims of domestic and gang violence by using his formal power to certify legal questions himself and changing the meaning of persecution for the U.S. government. Early in the COVID-19 pandemic, the CDC and the Department of Health and Human Services issued orders and rules under the once obscure Public Health Act to summarily exclude all migrants at the Southern border without valid travel documents, whether they sought asylum or not. The Administration has thus mobilized as many tools and troops as possible, some within the bounds of the law, others not, to enervate a complex legal structure built over decades of political and legislative struggle to honor our humanitarian obligations. And it has done so out of contempt or disdain for the largely non-white and poor immigrants who seek this protection today.
In calling Trump’s restrictionism in its many manifestations a threat to our democracy, I do not mean to suggest that there is a true America from which Trump and his followers have deviated. To the contrary, Trump’s use and abuse of the law has been in service of an understanding of American identity that has always battled for primacy. The United States has a system of laws that abets this Administration’s ambitions, as well as a long history to which the current depredations are connected. Some of the rule of law concepts deployed to resist Trump’s policies, such as the requirement that government actions be grounded in reasons and explanation rather than mere fiat (which has saved DACA until now), can help ensure that these laws are not abused. And a new President with political will should be able to unwind many of Trump’s orders, proclamations, and administrative rules. But shaping an immigration policy that works against Trump’s narrow vision of the polity requires active political work and fundamental reform. We must reimagine the system of substantive laws and the enforcement mindset that they embody as if the future of American democracy depended on it. It does.