May 21st, 2019


Like it or not, Trump has power over immigration policies

Ramesh Ponnuru

By Ramesh Ponnuru

Published May 3,2018

Like it or not, Trump has power over immigration policies

President Donald Trump's immigration policies continue to generate a lot of work for the federal judiciary.

Two of those policies have had divergent fortunes in the courts. The Supreme Court, which just heard arguments about Trump's ban on the entry of people from several countries to the U.S., is widely expected to uphold it.

But a federal district court has ruled that the president has to resume his predecessor's policy of granting quasi-legal status to people who came to the U.S. illegally as minors.

The legal issues in both cases are distinct, but in both cases the courts should probably back off and let the administration have its way - even if the resulting policy is unwise or unfair.

The "travel ban" looks more like an attempt to thread a political needle for Trump than an effort to make an appreciable improvement to national security.

The administration wanted to be able to say Trump was delivering on the "Muslim ban" he promised during the 2016 campaign without getting struck down for religious discrimination, and so came up with a ban on travel from several Muslim and a few non-Muslim countries as a legally viable face-saver.

In the case of the child migrants, even the administration concedes that it is not right to subject people who have spent their whole lives in the U.S., and came here illegally through no fault of their own, to deportation. It argues that it's up to Congress to change this policy, and that President Barack Obama should not have done it on his own.

A key issue in the travel-ban case is whether the courts should use Trump's campaign statements targeting Muslims as evidence that the policy has a discriminatory intent. In an earlier stage of the litigation, Judge Paul Niemeyer, writing in dissent, highlighted some of the dangers of such a judicial practice.

By making it possible for a judge to cherry-pick candidate statements and interpret them uncharitably, he wrote, it would "enable any court to justify its decision to strike down any executive action with which it disagrees."

It would also have a chilling effect on candidates' communication with voters during an election, since "any statement made may be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges."

During the argument at the Supreme Court, Chief Justice John Roberts got Neal Katyal, the lawyer arguing for striking down the travel ban, to admit that President Trump could solve the alleged constitutional problem by disavowing his prior statements and re-issuing the ban. (If he then disavowed the disavowal, would the courts, on Katyal's argument, then have to strike it down again?) The Supreme Court should avoid this absurdity by leaving the policy in place.

Federal Judge John Bates, meanwhile, in opposing the administration's move to rescind the Deferred Action for Childhood Arrivals program, has embraced a different absurdity: that one president may make a unilateral change to immigration policy at his discretion that his successor may not undo.

Obama shielded illegal immigrants who came here as minors from deportation by purporting to be exercising discretion over enforcement. He was, supposedly, merely saying that their deportation should not be a priority for the immigration bureaucracy.

The Trump administration questioned the legality of Obama's action, in part because federal courts had blocked another move of his that was similar to it - a grant of quasi-legal status for many illegal immigrants who came here as adults.

Bates does not think that the Trump administration has shown that the amnesty for people who came here as minors was illegal. But it's not clear that should matter.

There is no dispute that subjecting these people to deportation and denying them work permits, cruel though it may be, is consistent with the immigration statutes.

Nobody argued, before Obama's policy, that the courts could stop them from being deported or give them work permits. Either the president's enforcement discretion does not go as far as Obama claimed, in which case the Trump policy is obligatory.

Or it does go that far, in which case the Trump policy is permissible. Liberal writer Mark Joseph Stern has argued that in siding with the administration on the travel bans, the conservatives on the Supreme Court are providing "judicial deference to a president who has done nothing to deserve it."

But Trump has done something to deserve it: He won the 2016 election. Courts ought to recognize that this fact gives Trump a great deal of power over immigration policy, whether they like it or not.

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Ramesh Ponnuru has covered national politics and public policy for 18 years. He is an author and Bloomberg View columnist.