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Trump’s Immigration Insanity
In the past week, President Donald Trump issued three Executive Orders (EOs) dealing with the status of immigrants and refugees in the United States. The first EO announced that it will deny federal funding to any sanctuary city, or city that refuses to cooperate in the deportation of illegal immigrants in the United States. The second EO declared the intention to build a wall to keep illegal immigrants from Mexico from coming into the United States. The third EO has three components: The first part bars indefinitely all Syrian refugees from entering the United States; the second suspends all refugee admissions for 120 days; the third blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, whether refugees or not, from entering this country for a period of 90 days. Parts of this order will remain in place until the government devises, in Trump’s own words, a program of “extreme vetting” of immigrants.
Of these, the ill-timed and stealth immigration and refugee order is by far the worst because it was imposed immediately, without warning or consultation, and hits hard at people who happen to be abroad—although now it appears, after some confusion, that the order does not apply to permanent residents, who may face extra scrutiny at airports, but are not categorically barred. Nonetheless the stories are legion of “scientists, business travelers and grandmothers” held in limbo by the new rules. The dislocations have prompted a massive outcry, not only from progressives, but also from classical liberals like myself who think of themselves as part of the loyal opposition. Indeed, the refugee and immigration order has already given rise to a class action challenge to the law, and to a decision by Judge Ann Donnelly of New York that blocked, at least temporarily, U.S. immigration authorities from forcing incoming refugees back home on the ground that deportation would cause them irreparable injury. At this writing, similar orders have been issued in Boston, Seattle, and Virginia. President Trump, largely oblivious to the chaos and protests, observes that the ban was “working out very nicely,” but “it’s not a Muslim ban.”
Clearly, Trump’s inflammatory campaign rhetoric was not for show. For better or worse, the president meant every word he said, and therein lies the source of the problem. The ostensible justification for these orders is the promotion of national security, an end whose legitimacy no sane person would dispute. But the question is—what means should be used to achieve that end? As is the case of all government actions under conditions of uncertainty, it is necessary to balance the risks of two kinds of error. The first facilitates the entry of people into the United States who ought not to be here. The second excludes entry from the United States of people who should be here. The president is right to note the high stakes of any terrorist attack. But he shows his blindness by trying to keep out people who should, by any standard of moral decency or economic self-interest, be allowed in. In my view, the obvious danger in these situations is transient gains at unacceptable political, moral, and social costs.
The first element to be considered in any grand reorganization of American immigration and refugee policy is the level of terrorist risk posed by new entrants. On this score, a 2016 Cato Policy Analysis on terrorism and immigration shows the debate is highly skewed by the outlier of the 9/11 attacks. It is of course imperative to take some steps to deal with these issues, but a wholesale ban seems to be wildly overbroad given the multiple ways in which home-grown terrorists could seek to implement similar plans, perhaps even in response to this order. It is ironic that most of the terrorists responsible for 9/11 were Saudis not covered by the ban, while other terrorist actions were committed by persons from Chechnya or Pakistan, neither of which were covered by the ban. It appears that only 11 out of 180 terrorists since 9/11 came from the countries covered in the president’s EO. Citizen attacks were far more common. What’s more, the incidence of terrorism from refugees in the United States is less than one in 3.64 billion per year, and it is even smaller for illegal immigrants, at one in 10.9 billion per year. The decision, therefore, to order an indefinite suspension of entry of persons from Syria denies refuge to persons who are at greatest risk. In addition, it is unclear what gain there is to apply the refugee ban to people born in these countries who have for years been dual nationals, traveling on British or Canadian passports.
Trump uses exaggerated rhetoric when he cries out “we don’t want ‘em here,” referring to radical Islamic terrorists. Sadly, his proposal does nothing to respond to the homegrown terrorist threats that could increase as a result of the obvious anti-Muslim tone of these orders. It is good that Christians from the seven targeted nations may well be allowed in, but it is dangerous, even scandalous, to keep Muslims out when they have also been persecuted. It is doubly so for those who aided the United States in its own war efforts in the Middle East. Trump speaks as if the only people who will be kept out are “foreign nationals who intend to commit terrorist attacks in the United States.” But sadly, his position exposes innocent people to a heightened risk of terrorism in their home countries.
The case is every bit as weak for the president’s order to build a nearly 2,000-mile wall with Mexico, and then seek to charge the costs back to that country. Illegal immigration from Mexico has been down, not up, in recent years, as better conditions in Mexico (and worse ones in the United States) have led to a decline by about 58 percent between the 2003-2007 period and the 2008-2012 one. Why these numbers portend some crisis that justifies the construction of a leaky wall that one can dig under, fly over, or walk through on a visa is beyond comprehension.
And the thought that Mexico can be bullied into paying for the wall is a political delusion, backed by faulty economic analysis. A 20 percent tariff on Mexican goods, which the White House has floated, ignores the simple fact that some portion of that tariff is passed back to American citizens in the form of higher prices, assuming they can afford to buy these goods at all. It is also blind to the risk of retaliation that Mexico could impose on American efforts to sell or travel to that country. Right now, the president’s pro-growth domestic program has boosted the stock market. But the risk of a trade war could wipe out those economic gains as it eats away at the moral fiber of the country.
A similar analysis applies to the effort to ferret out illegal aliens in dozens of sanctuary cities. These cities do not offer protection to individuals that commit criminal offenses. But they do offer help to illegal aliens whose only offense is being in this country. Once again, the question is, why extend the net so widely when the very success of the American economy in many locations depends on contributions from undocumented workers who pay income, sales, property, and Social Security taxes, even though they may turn out to be short-termers? In dealing with these vexing issues, it is critical for the president to get some buy-in from immigrant groups who stoutly oppose him. By acting unilaterally, he has already stirred up a storm of protest, without having the foggiest notion of its long-term social consequences.
The obvious next question is, what, if anything, can be done to stop the president in the days, months, and years to come? The first step should be a sharp rebuke from Congress in the form of a refusal to appropriate any funds for the construction of the wall with Mexico, or to carry out any other executive order, which should be doable on a combination of policy and fiscal grounds. The great advantage of this route is it puts Trump on the defensive, and buys time for a more thoughtful approach to these problems.
Short of that, there is a great temptation to seek constitutional remedies to deal with these matters. The bad news on this front is that the culture of overly broad administrative deference is particularly strong with issues of immigration and entry into the United States. One example of an attack that will not work is that suggested by my University of Chicago colleagues, Professors Daniel Hemel, Jonathan Masur, and Eric Posner. Rightly appalled by the mindless Trump EO, they have made the tantalizing suggestion that the ghost of Antonin Scalia could block construction of the wall. The point of their article is that Trump cannot proceed under the Secure Fence Act of 2006, which authorizes the Secretary of Homeland Security to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.” In their view, the words “necessary and appropriate” forbid a wall that produces only trivial benefits in exchange for large costs. Scalia’s opinion in Michigan v. EPA, which they cite for this conclusion, does not bear that weight. Over the dissent of the four liberal justices (who, by their reasoning in this case, would have to bless the wall), Scalia rejected a power plant regulation that imposed $9.6 billion in annual costs for identifiable benefits between $4 and $6 million per year—clearly an absurd result of any cost-benefit analysis.
Yet two features of this case stand out. First, it only stood for the proposition that the government cannot wholly “disregard” costs in making its judgment, even if, as he accepts, the government receives “capacious” deference under Chevron in executing any particular statutory command. The Trump analysis, in contrast, makes an elaborate if unpersuasive case of the high costs of continued immigration, starting with an assumption that some wall is necessary and then leaving it to the Secretary to decide how to execute on the program. I have no doubt that Scalia would have gritted his teeth by holding this a permissible delegation, which, under the current toothless non-delegation doctrine, it surely is.
The constitutional questions are harder to resolve for the EO on sanctuary cities, which holds that the executive branch will “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” This turns out to be a tall order, fraught with constitutional and operational difficulties, even if it is widely accepted that federal law preempts state law under the Supremacy Clause of the Constitution on matters relating to the status of aliens, legal and illegal, in the United States. The first point is one of simple logistics: The covered states and cities receive massive funds for all sorts for purposes wholly unrelated to the immigrant problem. It is inconceivable that any President would be so foolish as to cut out any and all discretionary funding on matters of education, health care, the environment, and more. Second, there is a genuine constitutional puzzle over what it means to “fail to comply with applicable Federal law.” The famous 1997 Scalia opinion in Printz v. United States held that it was unconstitutional for the federal government to command state and local law enforcement officials to perform background checks on persons applying to use guns. The theory was that this enforcement encroached on the reserved powers of the state as protected by the Tenth Amendment.
It thus becomes clear that the United States cannot press state and local police officers to arrest persons on its instructions. But, by the same token, Printz does not allow state and local police to throw federal immigration officials off the scent by giving them false information about their whereabouts. Yet there is a large gray middle that defies easy resolution under current law. If the state officials receive notice that federal immigration authorities want to collect a person known to be in custody, may the state release that person before the federal officials have a chance to do the apprehension? Must they open the cell door? If not, can the federal officials break the door down? It is not possible to administer any law in which actions involved in the transfer of custody from state to federal officials raises difficult issues that could be litigated ad nauseam in courts around the country.
The President is horribly off base when he thinks that he is responding to an immigration and refugee crisis, which his petty, unwise, and precipitous actions have inflamed. On these issues, he should heed this simple advice: back off, or resign, or both, before it is too late.
http://www.hoover.org/research/trumps-immigration-insanity
Published in Domestic Policy, Immigration
While the stories may be legion, the number of individuals involved is not. I clicked on the link in the hope of learning more. Imagine my surprise at being redirected to the Chase website. The good news is that I have an account there so I was able to get a little banking done, courtesy of Mr Epstein.
The term sanctuary city is not well-defined but it is generally understood to include refusing to cooperate with federal immigration officials in enforcing the law of the United States. I’m not an expert in federal-local law enforcement relations but it’s my impression that the general rule is that the law enforcement agencies at the various levels of government cooperate with each other to uphold the rule of law.I’m surprised that Mr Epstein would be hostile to this concept. Presumably, there’s no uncertainty that exclusive federal jurisdiction on the matter of immigration is unquestioned.*
Are there other instances (besides weed, another interesting exception) of local and federal authorities are at odds in this way?
*Edit: By implication this includes the presumption of the supremacy of federal law over local ordinances in this matter.
Thanks for this perspective, Richard.
The estimates are from a DHS report that may not be trust worthy. I have lost trust in institutions to tell the truth and not massage numbers.
https://www.google.com/amp/www.foxnews.com/politics/2016/09/15/dhs-accused-sittingon-damning-border-report-as-immigration-issue-drives-presidential-race.amp.html?client=safari
http://m.washingtontimes.com/news/2016/nov/10/dhs-admits-surge-illegals-border/
Richard Epstein: A similar analysis applies to the effort to ferret out illegal aliens in dozens of sanctuary cities. These cities do not offer protection to individuals that commit criminal offenses. But they do offer help to illegal aliens whose only offense is being in this country.
Do tell.
http://www.cnn.com/2015/07/03/us/san-francisco-killing-suspect-immigrant-deported/index.html
http://www.sfgate.com/news/article/Protected-immigrant-faces-charges-in-stabbing-3198552.php
Not sure how an EO, affecting, for about a day, several hundred people (until it didn’t) can be considered a catastrophe, but what do I know? Is it clear the policy was ever intended to apply to residents? So basically, the equivalent inconvenience of a major snow storm is supposed to turn the EO into a failure.
The argument that the EOs will make us less safe is asinine. If someone looks at the EOs and becomes a terrorist, they are merely looking for an excuse to act on the beliefs that they already hold. We cannot be held hostage by the insane sensibilities of radicals.
This is likely the weakest argument that I’ve read (or heard) from Prof. Epstein, even granting the open borders bent of those of the libertarian persuasion. As we learned from a tragedy in San Francisco not that long ago, the cities may “not offer protection to individuals that commit criminal offenses,” but they do offer protection to illegals who may and do commit criminal offenses.
And, unfortunately, there is no discussion about the rule of law. Yes, there are arguments of convenience (and found in the Wall St. Journal) about illegals’ tax payments and contributions to the economy. These amount to “it’s better that we ignore the law.” But Professor’s Epstein’s use of the phrase “only offense” is telling as to his respect for immigration law. So why not allow the cities to ignore it? And why, pray tell, not seek “buy-in” from groups who have proven themselves incapable of buy-in?
May I take exception to the use of the phrase “home-grown terrorists?”
Home-grown infers American citizenship, yes, but with the tribal nature of Islamism this means nothing.
Nidal Hasan (Ft. Hood) – parents were immigrants from Pakistan.
Omar Mateen (Pulse Nightclub, Orlando) – parents were immigrants from Afghanistan
Syed Rizwan Farook (San Bernardino) – parents were immigrants from Pakistan.
Tsarnaev Brothers (Boston Marathon) Brought to the US as children, parents were immigrants from Chechnya.
Born citizens, trained in a culture of death.
If Congress followed your lead and refused to appropriate funds for the wall, they would suffer well deserved political consequences. You don’t really say why having a wall is such a bad idea, other than to point out that we can’t make Mexico pay for it. You’re right about that. In fact that is the only thing about Trump’s positions I don’t get. There’s no rational, legal, or moral basis for saying that Mexico should pay for our border security. It seems to be included in Trump’s rhetoric for the sole purpose of antagonizing Mexico and/or getting a certain type of Trump supporter hyperventilating.
A law enforcement officer’s authority extends only to the jurisdiction that gave him the badge. e.g., local traffic cop has no authority to make federal arrests. That authority-jurisdiction balance works both ways, and that’s what makes sanctuary cities plausible, in that local jurisdictions have no authority to carry out federal law – and are therefore entitled to refuse to enforce it.
But that doesn’t mean they are entitled to obstruct it, either.
Good, sober and thoughtful disagreement to the EO’s that contrast a lot of the hysterical rhetoric we’re getting from the Left. I can appreciate this a lot, as it’s getting hard to take a position on things when one doesn’t want to be associated with those over-reacting on either side of the debate.
This is true. However, it’s unlikely the EO would have remedied all of these, or any. In fact, ISIS recruitment is wholly different from what we’ve been used to so far, meaning control borders will do little to curb terrorism from that end at least.
I seldom disagree with Dr. Epstein, mostly because he’s so smart and knows so damn much and overwhelms. But here he’s dealing with matters that are not strictly legal, economic or political. There is real complexity and when dealing with chaos, and politically impossible issues, I think one must simply plunge, and then let reality sort it out. That is an approach Epstein often welcomes.
This must give Kate Steinle’s family a great deal of comfort.
To your point San Francisco’s ordinance threatens law enforcement officers with fines and/or dismissal if they help ICE or other federal law enforcement officials by identifying illegal aliens. A bit difficult to be a patriotic American when a city determines that their ordinance takes precedence over federal law. Screw the Supremacy Clause of the Constitution. Cities know best what’s better for America.
Question for Mr. Epstein: Is the federal government required by the Constitution to fund any program administered by state governments? Other than providing for the national defense or Clean Air and Water regulations that would affect neighboring states, please identify the section(s) of the Constitution that require the federal government to fund other non-interstate programs.
Where is the constitutional argument you allude to? Or is your argument more a matter of practical politics since you’re really only saying the President would be foolish?
Honestly, I think Trump hit a home run when he stated we need to enforce the laws on the books. I would expect acting against Sanctuary Cities would just be using the pocketbook to penalize the more recalcitrant cities that think it’s virtuous to ignore those laws.
And didn’t the Obama Administration flex their muscles to declare that the Federal Government has primacy in enforcing immigration rules back in the day? He set the precedent there.
How is this rhetoric ‘exaggerated’? Is there some sort of middle ground where radical Islamic terrorists in America should on occasion be tolerated?
This is quite laughable.
Yep. Eric Holder (that paragon of justice) sued the State of Arizona, as I recall, on that very point. Now, he’s been hired by the State of California to contradict his earlier position.
That case always amazed me, because Arizona’s law just instructed State enforcement agencies to enforce existing federal law. Then the AG and the courts come in and insist that the states can’t do that. Our system is broken.
Epstein: The third EO has three components: The first part bars indefinitely all Syrian refugees from entering the United States; the second suspends all refugee admissions for 120 days; the third blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, whether refugees or not, from entering this country for a period of 90 days. Parts of this order will remain in place until the government devises, in Trump’s own words, a program of “extreme vetting” of immigrants.
Sounds pretty damn sensible to me. Of course, we could gnash our collective teeth that Iran, our new trading partner, beneficiary of planeloads of American currency and still the world’s leading state sponsor of terror will retaliate by not admitting
future hostagesAmericans to Iran. I’m as verklempt as Senator Schumer. Oh, where is the Kleenex box when I need it?Fixed!
Let’s be clear about this. Sanctuary cities are not just failing to make federal arrests. As noted above, they are refusing to cooperate with other law-enforcement entities. I’m not sure if they are legally obligated to do so but this has nothing to do with jurisdictions per se. Aside from the strict legal issues, there is a question of intent. Clearly the often explicitly stated intent is to obstruct the enforcement of federal law, which is supreme in this domain.
Edit: I now see that this point was more ably answered by @brianwatt, above.
Can you propose a way to properly vet immigrants from countries where terrorism is rampant? If you can, please notify the FBI. They’ve been looking for a way to do this and seem to be at a loss.
Yawn.
People seem to have this problem conceiving of what can and cannot be borne by the American public or the President. This is precisely the view of people who thought he would never be elected. I’m not a big fan of Trump, but I know when I’m wrong, and this election wildly shows that Trump means what he says and doesn’t much care that the “good” people think something can’t be done.
Are there also articles entitled “Obama’s Immigration Insanity” or “George W. Bush’s Immigration Insanity”?
CATO immigration policy quote: “Many immigrants arrive with extremely high skill levels, and virtually all, regardless of skill level, bring a strong desire to work. Their children tend to reach high levels of achievement in American schools and in society at large.”
Now who are the dreamers?
What percentage of immigrants arrive with masters and doctors degrees in STEM fields?
They seem to believe in the unconstrained vision that Thomas Sowell warns about. Mentioning immigration without talking about things like demographics, religious motivations, average IQ, language skills, non-welfare support network in the new country, generational American unemployment and welfare dependency, and cultural views is a useless exercise.
This snippet is unintentionally revelatory. Mr Epstein’s view seems to be that the US president has a responsibility to protect citizens of foreign countries equal to his responsibility to protect US citizens. I think Mr Epstein will find that many Americans, including this one, don’t see it that way. And if he’s still puzzled at the election of Mr Trump, the assumption implicit in his statement may provide a clue.
… and they just happened to start falling when the original border fence was erected.
Given these numbers, there seems to be little need for an 85ft high concrete wall along the entire border, but closing the gaps of fencing along the Rio Grande certainly wouldn’t hurt.
This is the crux of the entire matter. Sean Spicer’s press engagement today was laced by several instances where he had to remind the questioner that aliens have no right to enter our country, and that Trump’s order has the specific goal of protecting US citizens. Those with a global perspective disagree. So what?