Originally Published in Vox
Nicole Narea - August 27, 2020
How a second term could cement Donald Trump’s vision of America.
On the campaign trail in August 2016, then-candidate Donald Trump departed from his typical stump speech to give an uncharacteristically detailed address in Phoenix that would define his immigration agenda for the next four years.
His thesis was simple: The US immigration system was broken in a way that served “the needs of wealthy donors, political activists, and powerful politicians,” Trump told the crowd. “Let me tell you who it doesn’t serve. It doesn’t serve you, the American people.”
He proceeded to describe, in laundry-list fashion, how he would reinvent the immigration system for what he said was the benefit of American citizens, painting an inaccurate portrait of immigrants as violent criminals and low-skilled workers as stealing American jobs and draining taxpayer resources.
Four years later, Trump has brought his restrictionist immigration agenda to fruition, despite lawsuits from activists who have challenged his policies at nearly every turn.
He built impediments in Central America, at the border, in detention centers, and in immigration courts that have made obtaining asylum nearly impossible for people fleeing violence in their home countries. He vastly expanded immigration detention, rapidly returning migrants to Mexico and prosecuting every immigrant caught crossing the border without authorization. He waged a quiet and effective campaign to reduce legal immigration, using the coronavirus pandemic as an excuse to reject tens of thousands of visas and green cards. And he has skirted Congress to spend billions on his border wall, though only five new milesof “30-foot high steel bollard fencing” have been constructed so far, the San Antonio Express-News reported earlier in August.
As he seeks a second term, he’s also made it clear that he hasn’t finished. He still wants to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program once and for all, drive out the millions of unauthorized immigrants living in the US and curb their political power, enact what he calls “merit-based” immigration reform, and pursue a slew of restrictive immigration regulations.
The US has already seen the harms of Trump’s first-term immigration policies, which could cut deeper if he’s given another four years: Legal immigration is plummeting, stymying growth in the labor force and threatening the US’s ability to attract global talent and recover from the coronavirus-induced recession. The US has abdicated its role as a model for how a powerful country should support the world’s most vulnerable people. And the millions of immigrants already living in the US, regardless of their legal status, have been left uncertain of their fate in the country they have come to call home.
Other concerns — including the coronavirus, racial justice, and unemployment — have recently eclipsed immigration as a top motivating issue for voters. But for Trump, who currently lags former Vice President Joe Biden in the polls, restricting immigration proved a winning message in 2016, and he will likely try to replicate that strategy again.
“It’s the thing he keeps going back to,” Douglas Rivlin, director of communication at the immigrant advocacy group America’s Voice, said. “It is his comfort zone — to go after people of color and turn them into sort of the specter of scary, violent people as a political strategy.”
Trump delivered on the immigration promises he made in 2016
Trump’s 2016 speech in Arizona was an example of how immigration restrictionists who once occupied the political fringe — such as White House senior adviser Stephen Miller and former US Attorney General Jeff Sessions — have crystallized anti-immigrant rhetoric into policy.
He outlined an aggressive agenda: Build a wall and make Mexico pay for it. Implement a “zero tolerance” policy meant to prosecute and detain every immigrant who crossed the border without authorization. Hire another 5,000 border agents and triple the number of Immigration and Customs Enforcement (ICE) agents to track down unauthorized immigrants living in the US. Block “sanctuary cities” that refuse to cooperate with ICE from receiving federal funding.
He called for blocking travelers from countries deemed to be security threats due to inadequate screening, including Syria and Libya — a version of the Muslim ban he first proposed in 2015.
And he promised sweeping reforms to the legal immigration system meant to keep immigrants as a share of the US population down, such as by granting visas based on an applicant’s skills and ability to be financially self-sufficient.
The agenda he outlined has become America’s reality. Trump’s travel ban, first introduced in 2017 and upheld by the Supreme Court in 2018, now covers citizens of 13 countries. He is moving forward with his plan to rescind DACA, which has allowed more than 700,000 unauthorized immigrants who came to the country as children to live and work in the US without fear of deportation.
He has all but shut down the asylum system on the southern border and is rapidly returning tens of thousands of migrants to Mexico amid the pandemic. The total number of refugees the US accepts annually has been slashed to just 18,000, the fewest in history, down from a cap of 110,000 when he took office. He has separated families to deter migrants from coming to the US, a practice that earned widespread, bipartisan condemnation in 2018 but one the administration has recently sought to revive.
Trump also proved that he didn’t need Congress to pass legislation to make it harder to legally immigrate to the US, unilaterally imposing a wealth test on immigrants (which is now facing legal challenges), nearly doubling the cost of naturalization, and creating the first-ever fee on US asylum applications. During the pandemic, he has temporarily blocked the entry of foreign workers coming to the US on certain visas, including the sought-after H-1B visa for skilled workers.
But in pursuing these policies, Trump has given a platform to immigration restrictionists who have long waited for the opportunity to enact their wish list, including those at the Center for Immigration Studies and the Federation for American Immigration Reform, groups founded by white nationalist John Tanton, who advocated for maintaining a European-American majority population.
And it’s caused a shift in his party: Even business-minded Republicans who have historically advocated for an expansion of legal immigration have bowed to their party’s anti-immigration wing, offering weak opposition to the president’s most extreme immigration policies, including the travel ban.
Trump would likely continue to rely on executive action
Presidents have broad legal authority over immigration. Though only Congress is able to shape the nation’s immigration laws, the president can unilaterally reinterpret those laws and exercise discretion in setting priorities for enforcement. Courts have historically deferred to the president on immigration matters, particularly those involving issues of national security.
Trump has tested the limits of that power to restrict immigration, rapidly churning out new policies (mostly by executive action) and hoping that at least some of them survive judicial review.
In a second term, Trump would likely rely on the same mechanisms to pursue some of the items still on his agenda: ending DACA and eroding immigrants’ political power through the census. And even though he won’t be facing reelection, he’ll likely be tempted to return to the subject of immigration simply because it resonates with his base.
“I believe President Trump is someone who wants to maintain his popularity with his fans even if he’s not facing reelection,” said Theresa Cardinal-Brown, director of immigration and cross-border policy at the Bipartisan Policy Institute. “Immigration is something he knows his fans really like, and there are a lot of things he promised to do that he didn’t get done.”
Trump is already laying the groundwork to move forward with terminating DACA, a proposal that faces broad public opposition outside a minority of Republicans. He first tried to end the program in 2017, spurring a years-long legal battle that culminated in the Supreme Court’s June ruling preventing the administration from doing so without a more robust rationale — a decision that many thought would mark the end of his war on the program. Instead, the president went back to the drawing board: The Department of Homeland Security is reviewing DACA further, examining its legality and impact on immigration trends, and blocking new applications in the meantime.
“I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission,” Chad Wolf, the acting secretary of homeland security, wrote in a policy memorandum in July. “At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration.”
Once that review is complete, the administration could terminate DACA using the same method it employed in 2017, but with another, more thorough memo. That could throw into doubt the future of hundreds of thousands of DACA recipients, as well as the more than 66,000 people who have become eligible for the program since the administration stopped accepting new applications in 2017. Congress has struggled to pass legislation offering them permanent protections, which they have awaited for nearly two decades, and the administration has indicated it would deport them if they lose their legal status.
It’s hard to imagine those deportations actually coming to pass, considering how politically unpopular it would be. What’s more likely is that Trump is merely using DACA recipients as a bargaining chip to help achieve his larger agenda: designing an immigration system that is primarily concerned with keeping people out, one that puts “America First” and makes life intolerable for all but the few immigrants who can come legally.
One component of that agenda is Trump’s efforts to use the 2020 census to erode immigrants’ political power over the next decade. After the Supreme Court ruled against his attempt to put a citizenship question on the census last year, he issued an executive orderthat instructed the Census Bureau to instead estimate the citizenship data using enhanced state administrative records. In July, he revealed how he intended to use that data: He issued a memo excluding unauthorized immigrants living in the US from census population counts for the purpose of redrawing congressional districts in 2021.
“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Trump said in a statement in July. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of American citizens, and I will not stand for it.”
Most states currently draw congressional districts, determining the areas that each elected official represents based on total population, including unauthorized immigrants. The current maps are due to be redrawn in 2021 after the results of the 2020 census come in, and the stakes are high: Each redistricting has a lasting influence on who is likely to win elections, which communities are represented in Congress, and, ultimately, which laws are passed.
The memo, which many legal experts have characterized as “blatantly unconstitutional,” has been challenged in federal court. If it survives, it would reduce the population counts in areas where foreign-born populations have traditionally settled — primarily Democrat-run cities — and therefore undermine their political power relative to more rural, Republican-run areas. But it could also impact red states with large immigrant populations, including Texas.
How Trump could ramp up immigration enforcement inside the US
During his first term, Trump has primarily focused on clamping down on unauthorized immigration at the southern border and has succeeded in bringing down the number of migrants apprehended to about 38,000 in July 2020, down from a peak of about 133,000 in May 2019.
Trump has signaled that deporting the estimated 10.5 million unauthorized immigrants living in the US would become his next priority if he wins reelection. That would only create more fear and uncertainty for unauthorized immigrants who have lived in the US for an average of 15 years and their US citizen children: More than 16.7 million people, including 6 million children, share a home with at least one family member who is unauthorized. It would also cripple industries that rely on unauthorized immigrant labor, including farming, construction, production, and service industries.
Before the pandemic hit, it appeared that Trump’s focus was already shifting. He has repeatedly said that he wants to end birthright citizenship, the constitutional guarantee to all children born in America, regardless of their parents’ nationality, which he sees as a factor that draws unauthorized immigrants to come live in the US. (But it’s not clear how he could do that or if he even has the legal authority to do so.)
In February, his administration started issuing subpoenas to “sanctuary cities” in California, Colorado, Connecticut, New York, and Oregon, ordering local law enforcement to hand over information on foreign nationals it was seeking to deport. It sent armed and highly trained law enforcement units from the SWAT-like Border Patrol Tactical Unit to sanctuary cities across the country to support ICE in carrying out routine immigration raids and, more recently, to Portland to quell ongoing protests over police brutality and systemic racism.
US Attorney General Bill Barr also announced earlier this year that his agency would begin “meticulously reviewing” the policies of local governments and district attorneys to determine whether they are complying with laws prohibiting the “harboring or shielding” of unauthorized immigrants, filing lawsuits against the state of New Jersey and King County, Washington, which includes Seattle.
All these policies taken together represent what immigration restrictionists call the “attrition through enforcement strategy” once embraced by former Republican presidential nominee Mitt Romney — essentially making immigrants’ living conditions so miserable that they decide to leave the country of their own volition, Rivlin said.
The administration has dialed back its interior enforcement efforts somewhat during the pandemic, vowing to “delay enforcement actions until after the crisis or utilize alternatives to detention” for all but people who pose a public safety risk or have committed crimes that require their detention. The agency also said it would not arrest immigrants at “sensitive locations” including health care facilities (There has been at least one documented case, however, in which that policy was violated.)
But once the crisis subsides, Trump could consider it open season on unauthorized immigrants living in the US.
Trump is eyeing reforms to asylum and legal immigration by regulation
Trump is still working on achieving what his border wall cannot: keeping out migrants from Central America, even if they’e seeking humanitarian protections, and making the immigration system put “America First.”
The administration is pursuing a slew of changes to the process by which migrants can apply for asylum and their eligibility requirements. In June, it proposed a draft regulation that would allow immigration officials to discard asylum seekers’ applications as “frivolous” without so much as a hearing, and make it all but impossible for victims of gang-related and gender-based violence to obtain protection in the US. It would also refuse asylum to anyone coming from a country other than Canada or Mexico, or who does not arrive on a direct flight to the US, as well as anyone who has failed to pay taxes, among other provisions.
And in July, the administration announced another proposal that would allow immigration officials to turn away asylum seekers from countries with any active disease outbreak, even beyond the coronavirus pandemic, that poses a threat to public safety.
The Trump administration is also pursuing regulations that would create new roadblocks for immigrants facing deportation proceedings in immigration court. The proposals would expand the US attorney general’s authority to intervene in immigration court cases, potentially politicizing the proceedings, and speed up immigration court processing in a way that immigrant advocates fear could deprive asylum seekers of a fair day in court.
Regulations reforming the H-1B visa program for skilled workers are also underway. More than 85,000 immigrants get H-1B visas annually, including more than 1,000 apiece for workers at tech giants such as Google and Amazon. Recipients are currently selected by lottery, but Trump is proposing to instead prioritize workers with the highest wages and raise the program’s minimum wage requirements.
He is also proposing to bar the issuance of H-1Bs to outsourcing firms that bring in employees, primarily from India, on these visas to fill IT positions, at times displacing American workers — a practice that lawmakers in both parties agree should be prohibited through reforms. And he wants to strip employment eligibility from the visa holders’ spouses and place new restrictions on Optional Practical Training (OPT), a work experience program for foreign graduates of US universities that often serves as a stepping stone to an H-1B visa.
If Trump succeeds in pushing these regulations through, it will be that much more difficult for his successors to undo his policies. They wouldn’t be able to do so with just the stroke of a pen, but rather would have to go through the same protracted process of giving public notice and the opportunity to comment.
Trump wants to build a legacy with merit-based immigration reform
Trump can act unilaterally on immigration policy in all but one arena: He needs Congress’s help to reenvision legal immigration.
The expansion of the use of executive authority on immigration policy has been driven in part by the longtime impasse on immigration issues in Congress, which last passed a major immigration reform bill in 1986.
The only time Trump tried to work with Congress on immigration was in 2018, when he sought to bargain over permanent protections for DACA recipients after he tried to rescind the program. When he made clear he wouldn’t sign the compromise bill that Republicans and Democrats had been working on, they abandoned the effort and have not returned to the negotiating table since.
But Trump hasn’t given up on the idea of comprehensive immigration reform. In July, he repeatedly suggested that the administration was working on an immigration bill that would address, among other issues, legal status for DACA recipients, saying it would create an immigration system “based on merit.”
It’s not clear whether he was referring to his son-in-law’s immigration proposal that was never introduced in Congress, or another proposal entirely. But he has previously described such a system as one that prioritizes high earners and skilled workers over those with family ties to the US and eliminates what he calls “chain migration,” under which US citizens and green card holders can sponsor their family members for immigration benefits.
Trump’s tenure has already had a significant impact on legal immigration patterns in the US, leading to a 43 percent decline between the end of fiscal year 2017 and 2019 in the precise category that he has sought to eliminate: family-based immigration petitions. Under his vision of a merit-based immigration system, those numbers could decrease even further.
Whether any version of that proposal will get traction would largely depend on the makeup of the next Congress and whether Democrats win a majority in the Senate. Most immigration policy experts aren’t convinced that Trump will see success in negotiating with Democrats, but the political calculus could change if Democrats control both chambers of Congress and need Trump to sign their legislation.
It also depends on Republicans acting as a unified front on immigration. So far, pro-business Republicans aren’t challenging the restrictions and travel bans Trump has imposed during the pandemic, and as the US continues to grapple with its worst economic crisis since the Great Depression and more than a million Americans are out of work, they will likely continue to follow the president’s lead. But in the long term, they might find themselves at philosophical odds with the anti-immigrant wing of the party.
“I think the reality of the economics of immigration and the sort of more ideological agenda are going to come into conflict,” Rivlin said.
But if Trump can overcome those hurdles, the prize would be substantial: the ability the leave his mark on the immigration system beyond a series of executive actions that could be reversed by the next Democrat who assumes office.
“Merit-based immigration reform would be a legacy for him on immigration, more so than a border wall,” the Bipartisan Policy Institute’s Cardinal-Brown said. “That would have impacts on the future of immigration for decades.”