The omnibus budget deal to avert a shutdown includes $1.375 billion to construct 55 miles of barriers. The bill contains restrictions on use of funds for anything but the specific numbers, precluding the president from using money appropriated by Congress. On Friday, President Trump will sign the bill plus a national emergency decree, providing $8 billion for barriers, including funds from unspent military construction funding, funds from the Pentagon’s current budget; and the balance from other sources. Because the omnibus bill covers seven appropriation bills, vetoing all would backfire.
The Democrats seeded the omnibus spending bill with “poison pills” (more may well surface as the 1,100+-page monster is combed over). The five: (a) restricting barrier location and structure (no concrete); (b) consultation with local officials to seek “mutual agreement” on construction — GOP House whip Steve Scalise interprets this language as not giving veto power, but left-wing judges could creatively interpret by deciding that the feds did not make a good faith effort, and thus delay projects; (c) amnesty for “coyote” smugglers who bring children in; (d) more funding to aid migrants than to detain them — indeed, cutting from 49,060 to 40,520 the number of detention beds (nearly 20 percent), thus facilitating flight into the interior and evasion of court hearings; (e) doubles H-2B visas to low-skill workers. (Another possible poison pill, which may turn up upon further review, is expanding asylum eligibility to include flight from domestic violence and crime; this is now easily reversible federal agency policy, but if codified in law would become law not reversible by the president.)
These led the president to decide to exercise his national emergency powers, and then face certain court challenges. He now has the benefit of his newly confirmed attorney general, William Barr; having been A-G before and a legal ace, Barr’s counsel is much needed.
The hazard here is that if specific legislative language buried as a poison pill in a monster bill can be interpreted by a judge as barring invocation of executive authority based upon existing law, two canons of statutory interpretation could give left-wing judges license to rule that the president lacks authority to declare a state of emergency. The canons are: (a) a later legislative enactment supersedes prior conflicting enactments; (b) a narrow specific provision supersedes broader, less specific provisions, by operating as an exception to the prior general rule.
Another, far more appealing wall-funding option comes from Sen. Ted Cruz: use part of the $14 billion confiscated from drug kingpin (and now convicted murderer) El Chapo. The remainder can be budgeted to improve drug searches at the border, the route by which most drugs illegally enter. But it awaits action (unlikely) in Congress.
Meanwhile, on the other side of the aisle, House Speaker Nancy Pelosi warned that a Democratic president could declare a national emergency and impose nationwide strict gun control. It shows that Democrats believe gun control has become their issue since last year’s Parkland massacre, and if a Democrat enters the Oval Office in 2021, watch out. (President Obama used expansive emergency authority to issue an executive order on “dreamer” residents, after repeatedly saying he needed the approval of Congress to act.)
What follows is a detailed analysis of the key issues underlying the disputes between the two parties. It begins with a brief summary of the president’s State of the Union address. The four major issues are covered, as set forth below.
As President Trump delivered his third State of the Union address, larger migrant caravans hovered at the border, with more and larger mass migrations on the horizon if nothing is done now. Key takeaways from Trump’s section on illegal immigration: (a) he is sending 3,750 troops to the southern border; (b) illegal immigration is a MORAL issue; (c) illegal immigration shows the divide between America’s POLITICAL class and America’s WORKING class — elites hide behind “walls and gates and guards”; (d) he proposed combining humanitarian assistance, law enforcement, drug detection, closing child smuggling loophole; plus (e) a “smart, strategic, see-through steel barrier” (meaning it can be walls, fences, etc.), deployed where border patrol agents say it is most needed to curb illegal crossings.
Four critical issues underlie the president’s proposals: (1) refugee v. migrant status; (2) presidential authority to declare national emergencies; (3) impact of border barriers; (4) federal “pre-emption” of state laws — setting aside state laws that conflict with federal laws.
Refugee v. Migrant Status. Begin with a brief summary of the three ways foreigners can lawfully enter the U.S.: (1) accelerated entry — jumping the line — for asylum seekers who qualify for refugee status; (2) regular entry — standing in line — for migrants (those not entitled to refugee status); (3) two-step entry — refugee asylum elsewhere, then regular migrant entry to the U.S.
The American rule that refugees accept asylum in the country that first offers it reflects a fundamental difference between refugee and migrant status: refugees take flight from legislatively designated specific kinds of persecution — political and/or religious belief; race and/or ethnic identity; membership in a particular social group — conducted by governments. Conversely, migrants make passage to a new country, in search of a better life. The urgency of “flight from” harm done or threatened by certain regimes justifies accelerated entry; the normalcy of migrants coming to America for a better life justifies making them stand in line, awaiting their turn.
A D.C. federal district court judge ruled in December that those fleeing gang violence or domestic abuse are eligible for asylum. The reasons for this decision bear examination. He rejected the statutory interpretation doctrine ofejusdem generis (“of the same kind”), i.e., that catch-all clauses tacked on to specific provisions of a legislative statute are limited in scope of coverage to situations similar to those in itemized provisions. Lamentably for Team Trump, the judge was able to point to language in the 1980 refugee asylum amendment to immigration law, adopting broad United Nations language on private persecution being sufficient to get asylum.
Garden-variety gang violence and spousal abuse are not persecution by regimes. Yet broad language the judge found in legislative language and court opinions makes asylum potentially available to those fleeing domestic and/or gang violence. If a government is “unwilling or unable” to prevent such private harm asylum could be granted (pp. 59-67 of text — link above), so long as the persecution is a (need not be the) central reason for the violence or threat of same. The judge (pp. 64-65) cited a 2018 federal appeals case involving a Mexican father fleeing drug cartel violence where the Mexican police took “immediate and active interest” in his son’s murder by the cartels. A First Circuit appeals panel found the Mexican authorities “unwilling or unable” for want of evidence that the Mexican government could make the father safer.
The breadth of this reading of the law means “open borders” in spades, hearts, diamonds, clubs, and no (to) Trump. One may conservatively assume that 80 percent of the world’s roughly 200 governments are run by kleptocratic elites who care not one whit for their immiserated subjects, who in such countries conservatively comprise 90 percent of the population. Thus the court’s reading means “open, sesame” for countless millions to not only emigrate as migrants to America, but to gain accelerated entry as refugees seeking asylum.
But does anyone really believe that in passing immigration laws governing asylum Congress intended to provide a safe haven to admit on an accelerated basis every abused spouse on the planet? Alas, the answer for the time being is that phrase the late Justice Scalia had on a stamper on his desk: “stupid, but constitutional.” It is left to the Supreme Court to decide that this interpretation is flawed; while it could do so, the temptation to avoid entanglement in a highly volatile public debate seems likely to win the day. Even easier for the Court is to defer consideration until after the 2020 election, especially as a federal appeals court must rule first. If Democrats retake the White House, they would surely drop the appeal, letting the lower court’s ruling in favor of asylum stand.
In addition, the president is further hemmed in by a series of settlements and court decisions made during the Clinton years, arising out of the detention of a teenage girl by the Immigration and Naturalization Service (INS, now known as ICE, for immigration and Customs Enforcement), which would only release the girl to the custody of her parents. In 1993 the Supreme Court held, 7-2, in Reno v. Flores (opinion by Justice Scalia; justices Stevens and Blackmun dissenting) that unaccompanied minors (UAMs) had a constitutional due process right to be released to their parents only, and that they did not have an automatic right of appeal to the courts. Despite having won the right to thus restrict UAM admissions, in 1997 Team Clinton signed a consent decree allowing release to other relatives or a guardian, and also that detention would be in the least restrictive setting available, with certain basic comforts provided.
In December 2008 the George W. Bush administration signed anti-child trafficking legislation requiring that UAMs be represented in all proceedings by pro bono counsel. Towards this end all UAMs were to be admitted at the border. This applied even when their parents brought children to the border illegally. This expanded the originally narrow (flight from totalitarian regimes) “one-foot” loophole. The law gave rise to an illicit cottage industry: “coyote” smugglers who, working with the drug cartels, brought families illegally into America.
Along came Barack Obama, who in 2012 issued an executive order creating Deferred Action for Childhood Arrivals (DACA), after Congress did not pass the DREAM Act. Obama did this despite having umpteen times told supporters he lacked legal authority to bypass Congress by executive order. Chalk up a win for electoral expediency and a loss for constitutional modes of lawmaking.
Then in 2014 the Bureau of Immigration Appeals (BIA), part of the Justice Department, opened the floodgates wide. The BIA expanded the understanding of political asylum from collectivepersecution by governmentsof disfavored social groups to include asylum for individualsfleeing spousal abuse and/or criminal gangs, and further ruled that inactionby a government constituted governmental involvement. Aside from stretching the English language past the breaking point, it is of course nearly impossible to prove claims made by an allegedly abused party when the accused spouse’s side is not meaningfully represented. Proving active government persecution of particular groups is relatively simple by comparison.
In 2016 an activist judge in California’s northern district federal court pronounced from Mt. Judicial Olympus that 20 days was the maximum permissible child detention period; this period is far too short for border authorities overwhelmed by a burgeoning caseload.
The result? Chaos and skyrocketing crime numbers: huge jumps in illegal drug imports, 68 percent of migrants reported being subjected to an act of violence, 31 percent of females reported having been sexually assaulted, and criminal groups raking in some $2.5 billion annually. The administration tallies 60,000 UAMs and 161,000 family units having reached the border. There has been an estimated 2,000 percent (20-fold) increase in asylum claims over the past five years, and immigration courts have a backlog of some 800,000 cases.
All of which tees up three questions: (a) What constitutes a national emergency? (b) Can the president lawfully declare one over the border crisis? (c) Can he use executive authority to address it?
National Emergencies and Presidential Power. Vesting emergency powers in an executive has its origin in John Locke’s Second Treatise on Government, a work that heavily influenced the American Founders, and the Framers of the Constitution. Therein Locke included the concept of “executive prerogative” to cover situations where literal application of existing law would inflict harm, and where speed of execution precludes legislative action. In today’s context, we face the converse case: It is the legislature and allied activist judges who seek to circumvent provisions of immigration law they abhor. The president, for his part, seeks to implement existing law, whilst getting legislative agreement to amend certain provisions he deems harmful to American security: the visa lottery, unlimited “chain migration,” and the “one foot” policy that encourages illegal aliens to bypass border entry points.
In 2007 the Congressional Research Service (CRS) published a report, National Emergency Powers (Aug. 30, 2007). The report identified four elements that collectively create a national emergency: (a) it is of “sudden, unforeseen, and of unknown character”; (b) it is “of gravity” — “threatening to life and well-being”; (c) it is perceived as such by governmental authority; and (d) it demands an immediate response. The new element that meets these tests is migrant caravans — as noted, larger than last year, and likely to grow larger.
The president’s power is bounded by acts of Congress. On immigration Congress has spoken, frequently and comprehensively. Thus, presidential emergency authority must be grounded in a delegation of emergency power by Congress. Such a statute was enacted by Congress, as the National Emergencies Act of 1976 (text); the statute was prompted by a 1973 Senate special committee finding that there were 470 delegations of presidential emergency authority then in effect. In the 1976 law, Congress specified procedural requirements for presidents to follow, including duration: such authority lapses after one year, unless the president transmits at least 90 days before termination his intent to extend the emergency. Since passage, presidents have declared 58 states of emergency, of which 31 remain in effect; the oldest was declared by President Carter ten days into the Iranian hostage crisis. In all, there are 136 Congressional statutes on the books covering presidential emergency powers. Congress acts by joint resolution (must be signed by the president), as concurrent resolutions (Congress acting alone) lack the force of law. Of 31 extant national emergencies to date President Trump has declared three: human rights abuses, interference in U.S. elections, and Nicaragua. Many of the extant states of emergency concern blocking transactions with governments in faraway countries that are either violating human rights or riven by internal conflict. Compared to these, controlling mass migrant flows across the southwest border is surely at least as important to the American national interest. But politics or judges may defeat the president.
Among the purposes for which presidential emergency authority has been used are sending troops to the border (G.W. Bush in 2006; Obama in 2010). The president clearly has emergency authority to use the military. The National Defense Authorization Act of FY 2007 empowers the president to “restore public order and enforce the laws of the United States”; and upon request by the Secretary of the Dept. of Homeland Security (DHS), the Dept. of Defense (DOD) can aid in domestic law enforcement to prevent the entry of terrorists, illegal drugs and illegal aliens. (This is an exception to the Posse Comitatus Act of 1878, which generally bars the use of the military for domestic law enforcement.) Congress appropriated funds to implement the Secure Fence Act of 2006 re the southwest border, for not less than 700 or more than 850 miles. (The total length of the U.S.-Mexico border is 1,933 miles.) Under Trump Congress has funded the Army Corps of Engineers to the tune of nearly $14 billion, to date unspent.
Border Walls Work. The Congressional Research Service has weighed in with two reports, in January 2017 (authorization and requirements for border barriers), and in April 2016 (immigration enforcement between entry points). The 2017 report states bluntly that “… nothing in current law would appear to bar DHS from installing hundreds of miles of additional physical barriers… to deter illegal crossings in areas of high illegal entry or… to achieve ‘operational control’ of the southern border.” The 2016 report summed up the history of border enforcement: concern over illegal entry began in the 1970s; in 1994 the Border Patrol shifted strategy from arrest after entry to deterring illegal entry; after the 2001 terror attacks border strategy added stopping terrorists from entering. Migration has mostly declined since the great recession of 2007-2008; economic slowdown and tighter border enforcement were factors. CRS cited one factor that likely contributed to decreased illegal crossings: barriers had been erected. While these had no impact on first attempts by migrants, they reduced repeat efforts. Since Trump’s election border flows have increased, as migrants fear tighter border controls; these likely are mostly first timers, as non-repeaters already have taken themselves out of the game. Stepped-up enforcement has also exerted a countervailing “caging effect”: migrants already here stay longer, and have children born here, rather than risk returning to Mexico and being unable to return.
Consider the case of El Paso, Texas, across the border from Juarez. In 2006, work began on a 131-mile, two-story high corrugated fence. When completed in 2010, crossings had dropped by 89 percent, from 122,000 to 12,000. In 2012 the total was 9,700, but with the upsurge in crossings they topped 25,000 in 2018. Crime has declined so much — illegal drugs smuggled in to El Paso fell 60 percent in the past decade — that El Paso (pop. 675,000) topped the nation’s list of safest cities with 500,000 or more residents, for the fourth consecutive year. Over a 25-year period, a series of fences/walls (4:39) on the San Diego-Tijuana border saw illegal crossings drop from over 628,000 in FY1986 to some 30,000 today. From one-third of illegal crossings in 1986, by 2017 these were a small fraction of the total. Barrier erections as of January 2017 totaled 653 miles (353 miles of pedestrian and just shy of 300 miles of vehicular barriers, plus 36 miles of secondary fencing).
The CRS 2017 report stated that the REAL ID Act of 2005 conferred broad authority upon the secretary of DHS to waive “all legal requirements” necessary to ensure expeditious construction of barriers as authorized by Congress. Legal review is vested in federal district court, with direct appeal as of discretion only to the Supreme Court; this bypasses the federal appeals courts. CRS notes that in the opinion of some observers this is the broadest-ever grant by Congress of waiver authority. Further, the CRS report opined that if Congress wished to narrow DHS administrative discretion it would have to do so by passing a new law. With authority this broad, it appears that the presidentneed notinvoke national emergency authority, at least, as to building the border barrier.
Much is made of illegal aliens being a small fraction of total migration. This is, of course, fact. The San Ysidro entry point near San Diego is the busiest entry point in the world. More than 30 million people — about 20 million in vehicles— crossed the SY entry point in 2012. Between 2003 and 2012 ICE deported 1.8 million Mexicans, of whom 360,000 (20 percent) were sent back via SY.
But while the illegal crossings are a small fraction of total crossings, they had a huge impact upon border life quality. In 1986 there were 102,000 crimes recorded on the American side of the SD-Tijuana border; in 2017 crimes recorded were fewer than 34,000. (For more on the positive impact on post-barrier life on both sides of the border, watch the riveting SD-Tijuana video [4:39] to the very end.) Migrant “apprehensions” (DHS parlance) peaked at 1.7 million in 1986 and again in 2000, and then fell sharply since (until 2017). Today’s 11 million illegal migrant number is down from a high estimate of 12 million.
Last week the Border Patrol reported that the number of large migrant groups (defined by BP as 100 or more) jumped from 13 in all of FY2018 (ended September 30) to 70 so far in FY 2019 — a nearly five-fold increase in only the first 4 months of FY2019; at this rate at least 200 will cross in FY2019.
Federal Pre-Emption of State Laws. A 2011 Supreme Court ruling has potentially serious implications for the current impasse: in 2011 Gov. Jan Brewer of Arizona, a Republican, signed into law a bill authorizing construction of a fence along the Mexico-Arizona border, and enabling the governor to seek the cooperation of the other border states (CA, NM, TX) in such enterprise. That law was mostly struck down by the Supreme Court in Arizona v. U.S. (June 25, 2012); the votes were 5-3 (Justice Kagan did not participate). Left intact was what Gov. Brewer called “the heart” of Arizona’s law: the ability of Arizona authorities to check a person’s immigration status while enforcing other laws, if “reasonable suspicion” exists to do so.
The majority (chief justice Roberts plus justices Kennedy, Ginsburg, Breyer, and Sotomayor) based its rulings on twin legal pillars: (a) comprehensive federal law displacing any state role in certain areas; and (b) on some Arizona provisions they deemed inconsistent with, and hence an obstacle to, federal law.
Justices Thomas, Alito, and Scalia wrote partial dissents. Thomas saw no conflict between Arizona’s law and the federal laws, and on the majority’s reliance on divining the intent of Congress rather than the text of the laws it passed. Alito noted that the majority relied not upon conflict between state law and federal law — i.e., the laws enacted by Congress and the federal Constitution — but on then-current administrative agency enforcement priorities. Priorities can change without change in federal laws, and hence are not a sufficient basis for pre-empting a state law. Alito found no decision of the Court supporting the majority’s view. Alito also noted that where state “police powers” (under the 10th Amendment) are involved — protecting borders is a prime example of this — federal pre-emption could be justified only given clear, unambiguous Congressional intent to do so.
But it was the late justice Scalia whose dissent was most pungent, and telling. He began by noting that our Constitutional framework incorporates dual — federal and state — sovereignties. Inherent in sovereign status is “what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” He then stated that Arizona has the sovereign right to step in given federal priorities that “include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.” After noting that Arizona was hardest hit by lax California and Texas enforcement, Scalia ended his blistering dissent:
Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state.
Because the majority endorsed federal agency enforcement priorities, they should, logically, uphold a policy shift by President Trump. One of their number, Anthony Kennedy, has been replaced by a more conservative justice (Brett Kavanaugh), while Scalia, deceased, was replaced by a like-minded jurist (Neil Gorsuch). Kagan, who did not participate in the 2012 case, as a member of the Court’s left-wing bloc, usually sides with an expansive reading of federal pre-emption power. But in the current logjam this would empower the Trump administration. It is hard to the see the four left-wing justices doing this. The right-of-center justices have in their favor the judicial doctrine of stare decisis — “let the decision stand” — with the precedent being the Arizona case. If the chief justice follows his constitutional rather than his political instincts, Trump will win immigration cases.
Bottom Line. President Trump is entirely justified in declaring a national emergency, per statutes enacted by Congress. Caravan migration of people alleging private threats renders impossible meaningful screening of entry aspirants. It remains to be seen if once again judges from California — the least representative state in the Union — once again steps in. If the lower courts can push a final ruling against the Trump administration past the 2020 election, and if the Democrats win, the incoming administration will surely drop the case. And then duly enacted federal legislation will have once again been bypassed in pursuit of the political goal of importing future Democratic voters — including non-citizens and felons.
The Census Bureau’s estimated 2020 electoral vote apportionment shows the three largest states — California (52 or 53), Texas (39) and Florida (29) — with 120 or 121 electoral votes, or 45 percent of the 270 needed to elect the next president.These three states have the largest immigrant populations, with two of them on the southern border with Mexico.
But what about calls (mostly from Democrats) for a “comprehensive” legislative fix that would “solve” our immigration problems once and for all? On the contrary, we are nowhere near ready for such a “solution” — if one even exists. There is solid reason to conclude that this goal is for the time being and at least for the foreseeable future, simply impossible. Were it possible to pass such a law in a few weeks, it would have been done a long time ago. And it would undercut any rationale for emergency action in the interim.
Why is it impossible to fix it all now?
First, we do not even know with any certitude how many illegal aliens now reside in the United States. And the gap between the current widely accepted estimate and higher ones is huge. One prime example is the number recently estimated by a major Yale/MIT study (neither hotbeds of “Trumpism”): it concludes that the number of illegals present in the U.S. has risen from 11 million to 22 million, within an estimated range of 16.5 to 29.5 million. The low figure is 50 percent higher than the widely accepted 11 million figure; the middle number about twice the current estimate; and the top number nearly thrice, at 2-23rdsthe current count. Relate this to the current U.S. population of 326 million. The current 11 million has illegal immigrants at 3.4 percent of total population; the middle figure is 5 percent, and the top figure would make 9 percent of Americans illegal aliens. A huge illegal resident increase here could greatly limit possible fixes.
Second, in order to ascertain the status of all illegal aliens here the authorities must obtain data from sanctuary groups, cities and states. Democrats will ferociously resist any such effort. With Congress deadlocked it would be up to the courts. Any court decision affecting the legal status of millions of migrants will have to be better than 5-4, as the chief justice will almost certainly not face the political heat a 5-4 decision on politically volatile issues would generate. Consider how the 2000 Bush v. Gore decision that settled the 2000 election was 7-2 on the key issue of “arbitrary and capricious” recount methods. The decision generated a massive political firestorm over election legitimacy that has not abated since.
The president can get, on top of the $1.375B in the omnibus bill, another $2.8B of “easy money”: $2.2B of unspent Dept. of Defense drug interdiction funds, plus $600M of forfeited drug lord money from the Treasury Dept.’s judgment fund; this makes for $4.2B total, just shy of 75 percent of the $5.7B he asked for early this year. And the president noted that there is an existing national emergency declaration re drug cartels, which neatly fits his $2.8B “easy money” add-on. Only the military construction reallocation of $3.5B figures to be rough sledding in Congress and also the courts.
There is also a hidden Machiavellian twist in his request for national emergency authority: it may be better in the long term for Team Trump to lose in the courts than to win. By losing, there will be federal judicial precedent — likely from the Supreme Court — limiting the scope of presidential national emergency authority when not already in a war or after a surprise attack. This could make it an uphill march for a future Democratic president to fulfill Nancy Pelosi’s “different values” threat, as to climate change or gun control.
It wouldn’t be the first time in U.S. political history that a president and his party lose the battle but win the war.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).
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