If you’re like me, you’re looking at the future with a lot of trepidation and uncertainty after the election. Things we took for granted suddenly seem to be at risk, and a temperamental megalomaniac surrounded by racists and lobbyists is gearing up to take over the White House. Also, we’ve all finished watching Gilmore Girls on Netflix so there’s nothing left to look forward to.
Things are grim and a lot of the fear and panic is warranted, but there’s also lots of confusion going around, and that’s not helping anyone. As with any situation, being informed and having the right information is the first step to action and might make the future seem less scary, so that’s what I’m here for. I’ve got a law degree and a can-do attitude, so we’re starting what will hopefully be a series about important civil rights, legal issues and how they may or may not be changed in the Trump administration.
Today we’re going to discuss one of the hallmarks of Trump’s campaign and an issue that has a lot of people very worried: immigration. But while we explore about that I want to also talk generally about how the job of the presidency and the US government actually works–something that even Donald Trump doesn’t seem to understand. The United States Constitution and Government is a complicated and not widely-understood thing, but it might also be what saves us from total ruin (there will be a little ruin, let’s be honest) in the world we find ourselves in.
Here’s the most important thing that gets lost in campaigns and news cycles alike: The President does not make laws. Let me repeat: the president has no power to create a law. It’s a concept called “separation of powers” that was very important in the early days of the Constitution and it’s just as important now. Congress writes laws and the executive branch, well, executes them. The judicial branch both decides how the law applies to people, but we’ll get there.
If immigration law is to change, that requires action by congress…which hasn’t happened in a long time. During the Obama administration no significant new laws concerning immigration were passed, so right now we are in the same legislative situation we had a decade ago. In the Trump administration, this may change–Republicans control the House, Senate and Presidency, so getting laws passed will be easier. What type of laws will be passed is unclear, given that Trump and congressional Republicans clashed mightily in the primaries about immigration.
Still, there’s lots of room for shenanigans. The legal immigration process in America is terribly complex and way too massive to get into in detail here, but that’s not really what Trump and his cronies care about. Sure, there was some noise in the debates about H1 visas–which are the means by which skilled workers arrive here (think tech jobs)–but the real issues that are getting attention are undocumented immigrants and refugees.
Let’s talk about refugees first. As I said, presidents can’t make laws, but they are empowered by existing laws to make some very important decisions. The main vehicle of this sort of power in the President’s control over executive agencies, like the Department of Homeland Security. Through DHS and the President, we get the number of refugees allowed into the country, as well as where they come from. In 2016, the Obama administration allowed 85,000 refugees into the US, with the largest chunk (34,000) coming from the Middle East. This is a number that the Trump administration can control and change. However, determining if someone is a refugee is based on the law, and whether that person is in danger of persecution if they return to their home country; the immigration services and courts get to make that call. Getting a refugee visa is already incredibly hard, just so that’s clear, but a Trump administration can make it harder. However, adding any sort of religious test to visa applications would be blatantly unconstitutional and at that point to courts would step in to do their job.
Overall, in the case of documented immigration, we have a complex and slow-functioning system that will probably only get slower and more complex as various legal challenges arise to attempts by Trump to manipulate it. Perhaps there will finally be some reform with a unified government that might actually make things simpler or faster or (dare I say it?) better, but that hasn’t happened yet and I wouldn’t place a bet on it.
And then there’s the whole other issue of undocumented immigration. Now, it’s important to note that undocumented immigration spiked during the Bush administration, and has flattened out and in some cases declined during the Obama years. There are an estimated 11 million undocumented immigrants in the US and 8 million of them in the workforce. One reason for the decline is that there are actually fewer undocumented immigrants coming from Mexico, though it still does count for the largest source.
Trump ran a campaign based on building a wall and forcing these people out, but there are already laws in place about how undocumented immigrants are deported and, surprise: it’s a long, drawn-out process. There are also already laws in place regarding detention and deportation of undocumented immigrants convicted of certain crimes. It’s a messy and messed-up system in need of reform that hasn’t happened for decades. The focus for Democrats was giving many of these workers a path to citizenship; now the focus is on Trump’s vague promise to deport…everyone. And that’s going to be really hard.
We’ve talked about the division of power among the three branches of government, but we haven’t talked yet about the other important division of power in the United States–and that’s between the federal government and the states. If Trump wants to deport millions of people he’s going to need the cooperation of local law enforcement…and the president has no power over your local police force. Our federal system doesn’t let the chief executive do that, which at this point in history is probably a very good thing. Many cities, counties and in some cases entire states have declared that they are sanctuaries for undocumented workers. These localities will not let their police force or resources be used to carry out immigration enforcement. That’s incredibly important, because creating an entire new army of federal immigration enforcement agents is going to be just as expensive and unwieldy as building a wall that people can just climb over.
This is one of the only ways states get to stand up to the federal government when it comes to immigration because of something called the supremacy clause. No, it’s (mostly) not about racism; it’s the doctrine that says in conflicts between federal and state laws, federal always wins. There’s also a thing called preemption, where the federal government is the only entity that gets to make laws about certain things–and the perennial example in law school for this is immigration law. That’s why immigration is going to be a big issue, because unlike other things like LGBTQIA rights or hate crimes, there are no helpful local laws. Again, it’s Congress that will or won’t make or change laws, but the President will chose how they are enforced.
And that brings us to our final aspect of presidential power: executive orders. The President does have the power to order agencies (the huge bureaucracy that makes up most of our government) to do things, which can have very big effects. Because Congress failed to act on immigration reform during his term as president, Obama made some very bold executive orders about granting a path to citizenship for certain undocumented people–the so called “Dreamers” who came to the country undocumented as children but have grown up here (this is also known as Deferred Action on Childhood Arrivals, or DACA). Obama ordered Immigration not to deport these people. This was super controversial, and portions of the executive order have been struck down by lower federal courts as going beyond the president’s power.
This leaves us with a double-edged sword: Trump can rescind this order and stop deferring immigration action for these young people, but the decisions of the courts on Obama’s orders limiting his power also means that Trump will be limited in what he can do via executive orders, which might be a good thing. So, to recap for today: Donald Trump only gets to sign and enforce laws, not make them, and he’s inheriting an immigration situation that has been a mess for many predecessors and has resisted reforms from both Democrats and Republicans forever. Enforcement of his promises will be hard logistically and constitutionally, but could still have negative effects.
The final question of course is: what can we do to help? In terms of immigration, I say go local. Find out how your state or city handles immigration enforcement and contact your local lawmakers. Get informed–this is just scratching the surface of things, but never stop asking questions.
image via a katz/Shutterstock.com
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Jessica Mason is a writer and lawyer living in Portland, Oregon. More of her writing can be found at www.fan-girling.com, and follow her on Twitter at @FangirlingJess.
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