Trump’s Immigration Crisis

Behind the flailing lies a potential disaster for immigration hawks.

Across the decade that preceded Donald Trump’s election, American politicians of both parties consistently tried to pass big, sweeping immigration bills that would legalize most of the country’s illegal population and increase immigration overall. These bills failed because of populist opposition, at first bipartisan (the resistance of a certain socialist senator from Vermont helped doom the 2007 effort) but increasingly simply conservative, and over time the conservative opposition developed a well-founded suspicion of Republican elites, whose plans on immigration always seemed to require ignoring their own base.

This sense of betrayal was fertile ground for Trump, who used bigotry and bluster to sell himself to immigration hawks as a Republican who wouldn’t, indeed couldn’t, sell them out. You could trust him more than the Bushes and Rubios because he was willing to be disreputable, willing to give the finger to elite opinion, willing to play not only the tough guy but the bad guy. And you had to trust him, some hawks argued, because the Democrats had been radicalized on the issue and the hour was late; it was either Trump or a Californian future, in which waves of immigration transformed the entire United States into a one-party, Democratic-governed state.

But the irony was that the populist resistance had already itself been reasonably effective in achieving some of the goals that Trump promised to pursue. Over the years when bipartisan elites were seeking the grail of “comprehensive” reform, they tried to appease skeptics with various forms of border-security spending, and this spending really did gradually harden the United States-Mexico border and make it much more difficult to simply slip across. Combine this with economic and demographic change in Latin America, and by the time Trump took office, border crossings had fallen by two-thirds since the presidency of George W. Bush.

In this sense Trump was a lagging, not a leading, indicator. He represented the political triumph of an attitude that had already changed policy, albeit in piecemeal and only half-intentionally, and partially sealed the porous borders of 15 years before. And his chief proposal, the famous wall, would have been a (literal) extension of the existing border-security project rather than a radical addition.

This reality created an interesting opening, especially in Trump’s first year, for a different kind of comprehensive deal, between restrictionists feeling a little more secure in their position and immigration advocates feeling chastened by populist backlash. And there was even some evidence that the White House might be groping in this direction — toward reforms that would seek stability more than radical change, tilting the entire system away from low-skilled immigration and toward recruitment, and compromising between restrictionists and enthusiasts by trying to keep the overall immigration rate about the same.

But that possibility has evaporated because of the second irony of immigration in the Trump era. Having inherited a border situation that was somewhat better than his rhetoric of crisis suggested, Trump has now been handed an actual crisis — a wave of Central American families claiming asylum, which has returned monthly crossings to their highest levels in a decade and overwhelmed the system for handling new arrivals.

There is a sense in which this crisis vindicates immigration hawks, who warned from the late-Obama era onward that the immigration decline wasn’t necessarily permanent, that there could easily be another wave, that United States policy — particularly the Obama precedent of a tacit amnesty for child migrants — created specific incentives for families and children to come north.

But those same hawks ended up electing a president whose signature immigration policy, more walls to deter border-crossers, has proved largely ineffective in dealing with an immigration crisis created by people surrendering to Border Patrol officers and asking for asylum.

The flailing also absolves the Democratic Party, currently torn between radicalism and evasion on immigration, from actually having to propose a coherent alternative to the White House’s approach.

If this sort of crisis were happening on President Hillary Clinton’s watch, it would create all kinds of political problems for the Democrats; as it stands, they can point at the man who once boasted of Washington that “I alone can fix it” and say, well, why don’t you?

There is still some political peril here for liberals, who may be inclined to confuse the public’s distaste for Trump with a consensus for an open door (though that Vermont socialist is still willing to swat down calls for open borders). But the greater peril by far is for conservative immigration skeptics, for whom the Trump presidency is at risk of turning into a policy disaster.

The attempts to increase deportation have been real enough, but they will be evanescent should Trump lose in 2020. The attempt to legislate sustained legal-immigration cuts has conspicuously failed. Someone in the administration is making deals behind the scenes to increase visas for low-skilled guest workers — one of the policies that hawks resisted for years in “comprehensive” bills. And the longer the current border crisis goes on, the more this White House’s most important legacy may be offering evidence that even Donald Trump, even Donald Trump, can’t really stop illegal immigration when enough people get the idea to bring their kids and come.

should Trump lose in 2020. The attempt to legislate sustained legal-immigration cuts has conspicuously failed. Someone in the administration is making deals behind the scenes to increase visas for low-skilled guest workers — one of the policies that hawks resisted for years in “comprehensive” bills. And the longer the current border crisis goes on, the more this White House’s most important legacy may be offering evidence that even Donald Trump, even Donald Trump, can’t really stop illegal immigration when enough people get the idea to bring their kids and come.

For every conservative faction, supporting Trump was a gamble — do you reach for short-term victory, even though his incompetence and unfitness might cost you in the long run?

The danger for immigration hawks is that the long run has already arrived.

No, Trump Cannot Declare an ‘Emergency’ to Build His Wall

If he did, and used soldiers to build it, they would all be committing a federal crime.

President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.

While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.

Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”

Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.

It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.

It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.

If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.

Making Acosta a Federal Case

Question: What does CNN’s Jim Acosta crave more than anything? If you said “attention,” go to the head of the class. It’s a mystery why the White House has given Acosta way more than that. By yanking his “hard pass” after last week’s press conference (don’t ask who was obnoxious; they all were), Acosta has literally become a federal case. CNN filed suit claiming that its reporter’s First and Fifth Amendment rights were violated. More than a dozen news organizations, including Fox, have filed amicus briefs supporting CNN, and even Trump-friendly Fox News judicial analyst Andrew Napolitano has opined that Acosta has a strong case. Mr. Showboat is just where he wants to be — the center of attention — but thanks to President Trump’s gratuitous swipe, he is also a free-press martyr.

Trumpism Is ‘Identity Politics’ for White People

After Democrats lost the 2016 presidential election, a certain conventional wisdom congealed within the pundit class: Donald Trump’s success was owed to the Democratic abandonment of the white working class and the party’s emphasis on identity politics. By failing to emphasize a strong economic message, the thinking went, the party had ceded the election to Trump.

.. the meantime, Trump’s administration has seen that economic message almost entirely subsumed by the focus of congressional Republicans on tax cuts for the wealthy and plans to shrink the social safety net. But even as the message has shifted, there hasn’t been a corresponding erosion in Trump’s support. The economics were never the point. The cruelty was the point.
.. Nevertheless, among those who claim to oppose identity politics, the term is applied exclusively to efforts by historically marginalized constituencies to claim rights others already possess. 
.. Trump’s campaign, with its emphasis on state violence against religious and ethnic minorities—Muslim bans, mass deportations, “nationwide stop-and-frisk”—does not count under this definition, but left-wing opposition to discriminatory state violence does.
.. A November panel at the right-wing Heritage Foundation on the threat posed by “identity politics,” with no apparent irony, will feature an all-white panel.
.. But the entire closing argument of the Republican Party in the 2018 midterm elections is a naked appeal to identity politics—a politics based in appeals to the loathing of, or membership in, a particular group. The GOP’s plan to slash the welfare state in order to make room for more high-income tax cuts is unpopular among the public at large. In order to preserve their congressional majority, Republicans have taken to misleading voters by insisting that they oppose cuts or changes to popular social insurance programs, while stoking fears about

.. In truth, without that deception, identity politics is all the Trump-era Republican Party has.

.. Trump considers the media “the enemy of the people” only when it successfully undermines his falsehoods; at all other times, it is a force multiplier, obeying his attempts to shift topics of conversation from substantive policy matters to racial scaremongering.

.. The tenets of objectivity by which American journalists largely abide hold that reporters may not pass judgment on the morality of certain political tactics, only on their effectiveness. It’s a principle that unintentionally rewards immorality by turning questions of right and wrong into debates over whether a particular tactic will help win an election.

.. In the closing weeks of the campaign, the president has promised a nonexistent tax cut to the middle class after two years in which unified Republican control of government produced only a windfall for the rich
.. Trump’s nativism, and the Republican Party’s traditional hostility to government intervention on behalf of the poor, have had a happier marriage than some might have expected.

.. But that wasn’t what Trump promised—rather, his 2016 campaign pledged both generous social-insurance benefits for working-class white Republicans and cruelty for undeserving nonwhites.

.. Republicans are scrambling to insist that they will cut taxes on the middle class, offer robust health-care protectionsand protect Medicare, Medicaid, and Social Security, even as GOP leaders in Congress plot to slash all three to cut the deficit created by their upper-income tax cuts.

.. When armed agents of the state gun down innocent people in the street, when the president attempts to ban people from entering the U.S. based on their faith, or when the administration shatters immigrant families, these are burdens that religious and ethnic minorities must bear silently as the price of their presence in the United States.

And in the impoverished moral imagination of Trumpist political discourse, any and all white Americans who also oppose such things must be doing so insincerely in an effort to seek approval.

.. America is not, strictly speaking, a center-right or center-left nation. Rather, it remains the nation of the Dixiecrats, in which the majority’s desire for equal opportunity and a robust welfare state is mediated by the addiction of a large chunk of the polity to racial hierarchy. It is no coincidence that the Democratic Party’s dominant period in American history coincided with its representation of both warring impulses and ended when it chose one over the other. The midterms offer a similar choice for the American voter, in rather stark terms.