Trump, Immigration, and the Post-Constitutional Temptation

Secretary of State John Kerry in May 2016 advised his fellow citizens to prepare themselves for a borderless world. A borderless world would, of course, be a world without sovereign nation-states and consequently a world without the exclusive citizenship that attaches to what our Declaration of Independence called the “separate and equal nations” of the earth.

When the sovereign nation-state has given way to the universal homogeneous state, citizenship will be replaced by what has been called “universal personhood.” This has been the goal of Progressivism for more than a century.

Historically, constitutional government is found only in nation-states, where the people share an exclusive common-good and are dedicated to the same principles and purposes. The goals and principles that animate a people may be universal, as in our case with the Declaration of Independence, but the real-life pursuit of those principles can take place only in a particular political community. The fact that “all men are created equal” and possess by nature the right to “life, liberty and the pursuit of happiness,” is a universal principle applicable to all human beings. But for that principle to become a political reality, an “equal and separate” nation had to be created “dedicated to that proposition” and, therefore, in opposition to any contrary proposition.

Any attempt to set that principle in motion on a universal scale would have failed at the time of the American founding and it will fail today, despite the wholly untenable and fabulous claims that the rights of individual citizens have evolved into an easily recognizable “universal personhood.”

The homogeneous world state—the European Union on a global scale—will not be a constitutional democracy; it will be the administration of “universal personhood” defined from on-high and without the inconvenience of having to rely upon the consent of the governed. Needless to say, “universal persons” will not be citizens; they will be clients or, more properly, subjects. Rights would become superfluous because the welfare of the community will have superseded individual rights.

Diversity versus Sovereignty
More than a century ago—just when the Progressive dream of the world homogeneous state was emerging—the Supreme Court announced what was considered the settled sense of the matter when it remarked in
Nishimura Ekiu v. United States that “it is an accepted maxim of international sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Immigration control was thus thought to be an indispensable aspect of sovereignty and “essential to self-preservation.”

It is clear, however, that progressive liberalism no longer views self-preservation as a rational goal of the nation-state; rather self-preservation must be subordinate to openness and diversity. Pope Francis voiced his agreement with this aspect of Progressivism when he remarked recently that the welfare of refugees and migrants should take priority over national security considerations.

President Obama and Hillary Clinton, both when she was secretary of state and when she was a candidate for president, agreed that acceptance of Muslim refugees was an important affirmation of the country’s commitment to openness and diversity. Clinton stated that acceptance of refugees was not only a reaffirmation of America’s commitment to diversity but also a reaffirmation of “who we are as Americans.” Clinton apparently assumed that the American character is defined only by its unlimited acceptance of diversity. A defined American character—devotion to republican principles, republican virtue, the habits and manners of free citizens, self-reliance—would, of course, be considered as impermissibly exclusive.

Most of the refugees who entered the United States, and those who sought asylum, during the Obama administration did not have adequate documentation, and the heads of the major security agencies warned that active terrorists and terrorist sympathizers would inevitably slip through security screening cracks. The clear implication of Obama’s policy was that America’s commitment to diversity outweighed considerations of national security.

President George W. Bush was also an advocate for a “borderless world.” He often liked to say
“family values don’t stop at the Rio Grande.” Bush, a supporter of amnesty and a path to citizenship for illegal aliens, clearly indicated that certain “universal values” transcend a nation’s sovereignty. Bush’s “compassionate conservatism” was on full display here, and he said on several occasions that we should be more compassionate to our less-fortunate neighbors to the south.

President Ronald Reagan used similar language when he signed the Immigration Reform and Control Act of 1986. The law provided amnesty for 3 million illegal aliens. At the time, Reagan touted the legislation as a way of “humanely” dealing with the issue of illegal immigration. In his signing statement, Reagan said the act “is both generous to the alien and fair to the countless thousands of people throughout the world who seek legally to come to America.” The act was supposed to be a one-time-only amnesty in exchange for stronger border control. Only the most naïve in Washington (mostly Republicans) believed that the promise of border control would be honored. Illegal immigration continued unabated.

The 1986 law, of course, also fueled expectations—and even demands—for additional amnesties, even that amnesties become a regular feature of American immigration policy. Delays in implementing new amnesties have been treated with contempt by immigration activists and proffered as evidence that the American people lack compassion—remember Jeb Bush’s statements during the 2016 presidential primaries.

Celebrating Sovereignty Rightly Understood
Almost any clear-eyed observer, however, could see that compassion is not a sound basis either for foreign policy or for immigration policy. Compassion is more likely to lead to contempt than gratitude in both policy areas. The failure of the 1986 amnesty should be a clear reminder of the useful Machiavellian adage that in the
realpolitik world of foreign affairs it is better to be feared than loved. Fear is more likely to engender respect, whereas love or compassion is more likely to be regarded as a contemptible sign of weakness. In 1984, Reagan had received 37 percent of the Hispanic vote. After the 1986 amnesty, just 30 percent of Hispanics voted for Reagan’s successor, George H.W. Bush. Granted, Bush was no Reagan; but such ingratitude seemed to puzzle Republicans.

Donald Trump in the 2016 presidential campaign appealed to the importance of citizens and borders. In other words, Trump made his stand on the nation-state and nationalism against the world-homogeneous state. He reminded the nation that the “just powers” of government are derived from “the consent of the governed.” The people, therefore, are the sole source of legitimate authority under the Constitution.

The president’s speech to the U.N. last week was a celebration of sovereignty and the nation-state. “The nation-state,” Trump said in a statement that was as true as it was hyperbolic, “remains the best vehicle for elevating the human condition.”

In appealing directly to the people in the election of 2016, Trump succeeded in defeating both political parties, the media, political professionals, pollsters, academics, and the bureaucratic class. All these groups formed part of the bipartisan cartel protecting the Washington establishment. The cartel is now hysterical, fighting to save the entrenched interests that it has represented for so many years. So far it has made a remarkably good showing, but Trump has scored some notable victories, not the least of which have been in border security and immigration enforcement.

Trump’s DACA Dilemma
The president, however, is facing a conundrum on the Deferred Action for Childhood Arrivals program. It is not a conundrum of his own making, but a result of past failures to enforce already existing immigration laws.

During the presidential campaign, Trump promised to end DACA. He quoted Obama’s oft-repeated lamentation that he had no constitutional authority to act on the matter: it was solely the province of Congress Obama said. When Congress failed to perform, however, Obama did act, ordering the Secretary of Homeland Security in 2014 to implement a program to stop the deportation of children brought to the United States as minors.

A restraining order from a Texas District Court in 2015 halted implementation of the program. Judge Andrew Hanen’s principal holding relied on statutory grounds, but he indicated in dicta that there would be sound constitutional arguments against the executive action derived from separation of powers. The executive branch, Judge Hanen noted, had no authority to award legal status to otherwise deportable aliens. This requires legislative, not executive, authority. Prosecutorial discretion, which is a proper executive function, cannot be expanded to encompass a power that clearly belongs exclusively to the legislative branch. The 5th U.S. Circuit Court of Appeals affirmed the decision and an evenly divided U.S. Supreme Court upheld the lower courts.

Trump has rescinded DACA but has delayed its rescission for six months, inviting the Congress to pass legislation reinstituting the Obama executive action. The president hopes that Congress will comply and has even said he is willing to deal. This, of course, will cure the separation of powers difficulties identified by the courts, but there is still a question of whether a law aimed specifically at one class will satisfy the Constitution’s requirement that laws regarding immigration be “uniform.”

The president, of course, had a constitutional duty to rescind the unconstitutional program, but it is curious that he allowed it to continue even this long. In fact, there has been no “rescission” at all; DACA has only been “suspended.” No new DACA applications will be accepted for six months, but pending applications will be processed and work permits that expire will be reauthorized. But if Trump believes DACA is unconstitutional, how can he allow such benefits to be conferred during this suspension period? And, in a curious turn, the Trump Justice Department has not withdrawn the Obama Justice Department’s 2014 opinion arguing the program’s constitutionality.

Trump, of course, campaigned on the promise to end DACA, saying there would be no amnesty or path to citizenship for the so-called “Dreamers.” He said that those who came to the United States illegally would have to return to their home countries and apply for reentry. These are “beautiful young people,” Trump frequently says, and in many cases highly educated. He does not use these words, but what he means is that they deserve our compassion.

If Congress is unable to agree on a bill, President Trump has hinted that he will act. He has not said what he will do, but surely he cannot be contemplating revival of DACA by executive action. I do not believe the president will follow his predecessor into the netherworld of post-constitutionalism, however much he may believe that the end of DACA would demonstrate a lack of compassion. DACA has thrust the president on the horns of a dilemma—but this does not alter his obligation to uphold the Constitution.

This essay is adapted from remarks delivered to a Claremont Institute panel on immigration and citizenship at Chapman University Law School, September 23, 2017.


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6 responses to “Trump, Immigration, and the Post-Constitutional Temptation”

  1. There are more than two billion people earning less than a dollar a day – and more than 60 million people a year are added to that number. Without borders it is hard to imagine why any of them would remain where they are instead of migrating to live on welfare here exceeding their wildest expectations. If we just absorbed the new ones each year or just 5% a year, within five years out culture and population would be submerged. Plan accordingly.

    • Well said, what we need to do is remain an example of what a Republic powered by a market economy can do.

  2. Take the “compassion” and shove it. The illegals have no compassion for Americans when they come here and live off of the tax payers money.

    Are we so compassionate that if a parent robs a bank, that we let the children keep the money?

    The laws were broken, send the law breakers and their off spring back across the border where they can join the end of the line. When time for approval comes check to see if they ever broke any American laws… If so (like coming here illegally) deny them the opportunity to enter our country. They had no respect for our laws the first time, they will have no respect the next time.

  3. “DACA has thrust the president on the horns of a dilemma—but this does not alter his obligation to uphold the Constitution.”
    Any bets?

  4. While I thank you for this thoughtful article, I am guessing that the word “uniform” pertaining to immigration policy in the Constitution simply means a rule that applies to all states in the Union rather than having one policy for Virginia and another for Delaware.

  5. Trump is playing fast and loose with the promises he made to “we the people” who elected him. Trump should pay careful attention to what happened to his endorsement of Luther Strange. Trump needs to send out a search party to see if he can find his lost “cojones” and do what he promised regarding DACA, regarding closing the borders and regarding all the other promises that effected his election. Failure to keep his word will make Trump into nothing more than another Lying Politician AND a one-term president.