Originally Published in Mother Jones
Fernanda Echavarri and Noah Lanard - October 30, 2020
When the Migration Policy Institute, a nonpartisan think tank, published its review of all the immigration changes made by the Trump administration, it needed 126 pages to do the job. What unites the hundreds of executive orders, rules, and memos detailed in the July report is an obsession with slashing immigration. Whether their full effects will ever be felt depends on what happens on Tuesday.
Although it’s hard to fathom, a second term for Donald Trump could be far more harmful to immigrants than the first. Policies that have taken years to develop will go into effect, new ones previously considered too politically toxic will be unveiled, and a 6-3 conservative majority on the Supreme Court will likely keep them in place when the inevitable legal challenges arise.
It might not seem like it, but the administration has shown a least a sliver of restraint on immigration over the past four years. When Americans protested family separations, for example, Trump said he was ending the “zero tolerance” policy at large, though families continued to be separated. Without the need to get reelected, he’ll have little incentive to give in to public pressure. Stephen Miller, the white nationalist who oversees Trump’s immigration agenda, could wind up with even more power over the lives of immigrants than he already does.
That could lead to the batch of radioactive executive orders that Miller is reportedlysaving for after the election. The most significant one of them is expected to end birthright citizenship. If the courts upheld that move, millions of people born in the United States—presumably children of undocumented immigrants born after the order goes into effect, and potentially others—could wind up relegated to second-class status.
To understand the potential impact on immigrants of four more years of Trump, it helps to go back to the beginning, when Trump signed the Muslim travel ban a week into his presidency. It was drafted sloppily, and courts quickly blocked it. But in June 2018, after many more legal battles, the Supreme Court upheld a new version of the ban that remains in effect.
The same story played out again and again. Immigrants got reprieves when lower courts stopped major crackdowns, until the Supreme Court overturned their decisions. Miller rushed out as many anti-immigrant policies as possible. He knew they’d be blocked at first, but his goal was to get them before the Supreme Court. The strategy usually worked, and it’s even more likely to succeed now that Justice Amy Coney Barrett has replaced the late Ruth Bader Ginsburg.
The administration’s wins before the Supreme Court helped erase any questions about the limits of the executive branch’s power over immigration. As Kristie De Peña, director of immigration policy at the center-right Niskanen Center, explains, the travel ban is an example of the Supreme Court essentially saying that it’s up to the president to decide whether an immigration measure is needed to protect national security. “That is by far the biggest, and probably most prolific, kind of cementation of the executive’s plenary authority in this area,” she said.
Another obstacle Miller faced was the length of time it takes bureaucrats to write regulations. The public charge rule, which blocks people from getting green cards if they’re deemed likely to use public benefits, was the administration’s most important means of reducing legal immigration. In June 2018, Miller told the head of US Citizenship and Immigration Services, the agency that handles legal immigration, that it was an “embarrassment” that the rule still wasn’t out 18 months into the administration. More than a year later, USCIS finally released the final version of it.
A series of judges blocked the rule. One called it “repugnant to the American dream.” In January, the Supreme Court let it go into effect. If Trump is reelected, poor and working-class people will face four years of having their green card applications denied under what is effectively a wealth test. They’ll disproportionately be from Latin America and the Caribbean.
Together, these executive actions create something far more damaging than the sum of individual rules. For example, the public charge rule will combine with a forthcoming Justice Department rule that would make it easier to deport people once they’re deemed public charges—possibly making it harder for poor people not only to gain green cards but to stay in the country at all. “While many of the administration’s changes appear small and technical, in combination they promise much larger impacts on the U.S. immigration system,” the Migration Policy Institute explained in its July report.
It’s not even clear at this point when meaningful numbers of immigrants will be able to come to the United States, since the Trump administration has used the coronavirus pandemic to block most legal immigration from abroad. The ban is based not on whether the virus has been contained, but whether the United States has recovered from the economic devastation it’s causing. That will take years, meaning the administration could potentially keep the ban in effect for the entirety of a second term.
At the border, the Trump administration had already all but ended asylum before COVID-19 hit. Not content to stop there, the administration has more anti-asylum regulations pending. As Aaron Reichlin-Melnick with the American Immigration Council put it a few months back, they range from policies that aim to kill asylum “by a thousand cuts” to others that try to finish it with “a huge cut to the neck.” If one of these policies ends up getting struck down in court, there will be another one right behind it.
Now the administration is using the specter of the virus to summarily expel children and adults before they can request protection. That also shows no sign of letting up. The Trump administration is pushing forward a new rule that would block people from seeking asylum if they passed through a country where the virus remains prevalent. As long as US officials say COVID-19 is widespread in Mexico, people from anywhere in the world who pass through Mexico would be blocked from seeking protection at the southern US border.
De Peña explains that the administration’s goal is to shut down humanitarian assistance at the border entirely. “I know what we could look like,” she said. “We’ve seen Hungary effectively shut down their entire asylum system. There are now just fences where there used to be processing areas for asylum seekers at their borders. Essentially, that’s what the United States is trying to replicate, and likely will replicate in a second Trump term.”
Farther away, hundreds of thousands of people will end up stuck in refugee camps instead of resettling in the United States. The Trump administration announced that it will let in no more than 15,000 refugees this year, down from the 110,000-person cap the Obama administration established in 2016. Cris Ramón, a policy analyst at the Bipartisan Policy Center, said that beyond keeping people out, the administration’s goal is to handicap future presidents by making the country’s infrastructure for resettling refugees “completely collapse.” That is already happening as resettlement agencies lay off staff because Trump has cut refugee admissions to record lows. “Ultimately, they’re just trying to shut down humanitarian assistance in its entirety,” De Peña added.
People who are already here won’t be spared, either. Earlier this month, Immigration and Customs Enforcement said it will begin summarily deporting people without letting them see a judge if they can’t establish that they’ve been in the country for the past two years. That means people with visas or temporary legal status, or even US citizens, who can’t provide enough documentation could end up deported if ICE agents stop them. These rapid deportations were used before only under very specific circumstances: when people were were apprehended within 100 miles of the border within two weeks of getting to the country. The new removal policy was initially blocked in federal court before an appeals court lifted the injunction.
This summer, the Supreme Court blocked Trump’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program, which gives certain undocumented immigrants brought to the country as children a temporary work permit and protection from deportation. But it sent the matter back to the administration for further consideration—essentially giving the administration a list of changes in can make in order to shut down the program with the court’s permission. In a second term, Trump could dismantle DACA and upend the lives of more than 600,000 DACA recipients.
Even if Miller and Trump released no new immigration measures between now and 2024, the next four years would be worse for immigrants than the last four in part because of all the policies that conservative courts have recently allowed to take effect. But of course they won’t stop there. “It’s just that this is all I care about,” Miller once told colleagues about immigration. “I don’t have a family. I don’t have anything else. This is my life.” That’s what reelection would mean for immigrants: four more years under an administration that cares about nothing more than getting rid of them.