Part 2: Trump II is making policy by fiat, just as Obama, Biden, and Trump I wrote immigration law from the White House.
When changes to immigration policy are made by White House fiat, there is no transparent debate, and pros and cons are buried in the abstruse language of lawsuits.
Obama used this strategy in 2012 when he issued an executive memorandum to create Deferred Action for Childhood Arrivals (DACA). This program protects from deportation and provides work authorization for persons who arrived in the United States unauthorized and as young children. A lawsuit to kill the provision by nine red-state attorneys general has been working its way through the courts, and I expect that the Trump administration will no longer defend DACA. This will put about 600,000 persons, well known in government databases, at risk of deportation.
The first Trump administration used the pretense of the COVID pandemic to invoke a little-known provision in law to restrict border entry.
Biden issued an immigration reform bill shortly after coming into office but said little about it. He used executive action to launch a tidal wave of temporary authorizations, using provisions in law designed for relatively precise applications (humanitarian parole and temporary protected status). JD Vance and other Republicans referred to Biden’s program as illegal because they considered his use of these provisions unconstitutional.
In the first few days of his second administration, Trump abruptly ceased all asylum proceedings on the southern border and stopped the refugee program. Trump is, in effect, rewriting the nation’s immigration law wholesale. It is noteworthy that he has not yet called for a new, comprehensive immigration law by Congress, which some Republican senators, such as Tom Cotton, have shown interest in.
It is not that Congress has not tried to assert its role. Two major immigration reform legislative initiatives since 2000 failed. When George W. Bush was re-elected president in 2004 with significant Hispanic support, he saw an opening for an immigration overhaul and a signature second-term achievement. He began pressing for action in 2006 in an Oval Office address.
The Comprehensive Immigration Reform Act of 2007 was a bipartisan effort led by Senators Ted Kennedy and John McCain. Key features of the bill included a path to legalization for many undocumented immigrants; increases in legal immigration; a temporary guest worker program; and enhanced enforcement measures, including a southern border fence. The bill ultimately failed to overcome a filibuster led by right-wing Republicans.
The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 was developed by a bipartisan “Gang of Eight” in the Senate, including Republicans John McCain, Marco Rubio, and Lindsey Graham, and Democrats Chuck Schumer, Dick Durbin, and Michael Bennet. The bill proposed increasing border security with additional fencing, surveillance drones, and 20,000 more Border Patrol agents; a 13-year path to citizenship for most undocumented immigrants; expanded opportunities for highly educated immigrants; a guest worker program for lower-skilled agricultural workers; and mandatory use of E-Verify for all employers. The bill passed the Senate with 68 votes, including support from 14 Republicans and all Democrats. However, it failed in the House of Representatives when Speaker John Boehner refused to bring it up for a vote.
Both initiatives failed due to intense opposition from right-wing Republicans, despite initial bipartisan support and, in the case of the 2013 bill, strong Senate approval. In retrospect, if either the 2007 or 2013 immigration bill had passed, we would have today a far more orderly and legitimate system of immigration.
Senator Tom Cotton is probably the most articulate Republican politician on the topic of a new comprehensive immigration law. It remains to be seen if President Trump decides to cede his self-arrogated power to a new effort by the Senate.