The perilous stakes of immigration law by executive fiat

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American presidents long have exercised broad powers over immigration policy. But what are the limits? Since his first days in office, President Trump has forced a national conversation around that question. One of his enduring legacies, for better or worse, may be to compel some hard answers.

In recent weeks alone, President Trump has claimed the authority to end birthright citizenship, issued an executive proclamation to drastically limit asylum eligibility, and deployed thousands of U.S. military troops to enforce immigration law. In each instance, Trump has claimed the inherent presidential authority to do so, with or without congressional approval, and perhaps even despite its disapproval.  

{mosads}Meanwhile, in a recent Supreme Court filing, the Trump administration rigorously defended its decision to terminate President Obama’s Deferred Action for Childhood Arrivals (DACA) program for undocumented youth. In that ongoing litigation, the Trump administration argues that rescinding DACA is justified because the Obama administration exceeded executive authority when it first created the program.  

More than ironic, this duality is telling. Trump’s arguments simultaneously posit the need for limits on presidential immigration authority and shine light on the absence of a principled answer to what those limits should be. If nothing else, when sentiments about constitutional power suddenly change when the president does, that should sound an alarm that political preferences are substituting for what the Constitution requires.

Trump’s claim to sweeping executive authority no doubt is emboldened by the Supreme Court’s majority opinion in Trump v. Hawaii, which upheld his so-called travel ban against constitutional challenge. Emphasizing the breadth of presidential power in immigration matters, the five-justice majority declined to scrutinize Trump’s words and actions, as it might have in other regulatory contexts. Instead, the court explained, “[F]or more than a century, [it] has recognized that the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”

The court’s extreme judicial deference in immigration traces to the Chinese Exclusion Cases, decided by the Supreme Court in the late 19th century. There, the court determined that the federal political branches had complete authority to exclude and expel immigrants on any basis, including race or nationality.

When those foundational immigration cases were decided, the court’s jurisprudence on constitutional rights was undeveloped, as were the nation’s social norms regarding discrimination. As that jurisprudence and our cultural understandings evolved over time, however, immigration law lagged behind.  

The result is a modern-day immigration regime where the normal constitutional rules do not always apply. More concretely, it has allowed presidents across the political spectrum to wield governmental power that would be patently unconstitutional in other regulatory contexts.

The travel-ban case tested the currency of the court’s anachronistic immigration jurisprudence. By declining to modernize it, the court missed an opportunity to bring immigration law — and this president — in line with generally applicable constitutional limits. Now, with his recent directives, Trump is doubling-down on the idea of creating immigration law through executive fiat.

But make no mistake: The stakes transcend immigration law and our sitting president.

Lurking behind the controversies over DACA, “sanctuary cities,” asylum and citizenship, are a set of constitutional values on which those cases turn — from individual rights to separation of powers to state autonomy. The fact that these core concerns arise in situations with an immigration component should not give presidents a free pass on any of these constitutional dimensions. Otherwise, it becomes all too easy for presidents to invoke catchphrases such as “national security” or “alien invasion” to paper over our written Constitution.

Nor should questions about presidential power be confused or replaced with questions about whether we like or dislike a president’s policies. The Constitution was crafted to keep certain values safe from the political whims of any one institution of government — including the president. Constitutional structures do not grind to a halt when Congress does. If anything, congressional inaction is a telltale sign of a nation divided, not a justification for a president to go it alone.    

Looking ahead, there is no reason to think future presidents will forfeit power once obtained. Indeed, Trump’s invocations of executive power are perhaps the extreme, but predictable, result of the steady accretion of presidential power over time. This one-way ratcheting of presidential power must be stopped by judicial and congressional intervention, or it will not be stopped at all.

It has become a cliché to invoke America’s status as a “nation of laws.” Less appreciated is that our laws reflect who we are and wish to be as a nation. No president should be able to unilaterally decide our national complexion. Any compromise on that point compromises our constitutional democracy.

David S. Rubenstein is a professor of law and director of the Robert J. Dole Center for Law & Government at Washburn University School of Law.

Pratheepan Gulasekaram is a professor of law at Santa Clara University School of Law.

Tags deferred action for childhood arrivals Donald Trump Immigration policy of Donald Trump Immigration to the United States Sanctuary city Trump v. Hawaii

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