Emma Lazarus and Donald Trump: Solving the Border Crisis

On the base of the Statue of Liberty in New York Harbor are the famous lines from poet Emma Lazarus: “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed, to me . . .” The United States is a signatory to the United Nations 1951 Convention relating to the Status of Refugees. Article 33 of the Convention provides: “No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Article 33 appears to implement a bit of Emma Lazarus’s poem, but it’s also clear from the U.S. Constitution that the sovereign people have delegated to their representatives the power of determining who can gain entry to this country. Article I, Section 8 provides that Congress is given the power “To establish an uniform Rule of Naturalization.” Congress has also passed legislation seeking to implement asylum for the kind of refugees contemplated by Article 33.

But in a recent statement about the deluge of undocumented foreign nationals from Central America now seeking admission at our southern border, President Trump observed:, “They come up. In many cases, they are rough gang members. In many cases, they are people with crime records. And they are given a statement to read by lawyers standing there waiting. It says, ‘I have great fear for my life. I have great fear for being in my country.’ Even though in some cases, some of these people are holding their country’s flags and waving their country’s flags . . .”

Similarly, former Secretary of Homeland Security Kirstjen Nielsen, in a December 20  press release, announced a new administration policy to prevent aliens “trying to game the system” by asserting groundless asylum claims and then “disappear[ing] into the United States, where many skip their court dates . . .”

The new policy mandated that purported asylum seekers coming through Mexico must stay in that country while their asylum claims are adjudicated. The Mexican government appears to have acquiesced in this policy, but it has been challenged in our courts by organizations including the American Civil Liberties Union and the Southern Poverty Law Center, which, while ostensibly defending the right of asylum, may really be promoting a policy of open borders.

An Obama-appointed District Court Judge, Richard Seeborg of the Northern District of California, accepted the arguments of the ACLU and SPLC and enjoined enforcement of this new policy on the grounds that the administration was unauthorized by Congress, and that the new rules didn’t comply with our nation’s obligation not to return any alien to a territory where his or her “life or freedom would be threatened.”

Judge Seeborg does not appear to be sympathetic to the goals of the administration to do more than had previously been done to monitor the status of undocumented foreign nationals, as he had earlier ruled that the administration’s attempt to add a question about citizenship to the 2020 Census was “arbitrary and capricious.”

A three-judge panel of the Ninth U.S. Circuit Court of Appeals, intriguingly composed of one Republican-appointed judge and two Democratic appointees, stayed Seeborg’s ruling on Mexican detention until arguments could be heard before its court, giving the Trump Administration a rare lower-court win. It is likely the legal question’s ultimate resolution will fall to the U.S. Supreme Court, but of fundamental importance here is the cultural and political issues at stake.

There is a profound conflict between the inspiring words of Emma Lazarus and the reality of border authorities overwhelmed by an influx of often suspect individuals seeking entry to the country, many of whom do not—to put it mildly—meet the criteria specified in our laws or policies to be admitted. There is no doubt that the president won the votes of many voters because he promised to enforce those immigration laws, and there is also no doubt that it is a fundamental feature of nationhood that a country’s people have the power, the right, and indeed, the duty, to maintain the character of the nation, the quality of national life, and the general welfare of the citizenry.

Our immigration laws and our immigration policy contain a welter of contradictions, such as the desire to provide asylum to the oppressed and the desire to protect our citizens from the consequences of unlawful human and drug trafficking. We have, now within our borders, according to some estimates, more than 20 million persons who have not complied with our immigration laws, and we have, according to both Obama border enforcement officials and the current administration, an unprecedented surge of such persons at our Southern border.

This clearly is a crisis, and even Democrats who formerly refused to recognize the gravity of this situation appear to be changing their views.

The Democrats’ previous unwillingness to work with this president in reforming our immigration laws and controlling our Southern border have contributed to what is now coming to be seen as a humanitarian problem of horrific dimensions.

The president, in his recent statement, pointed out that unscrupulous “coyotes” who have lured innocents with the promise of access to our country, “give them a can of soda, and they give them a sandwich, and they say Houston is 300 miles in that direction.” The result, the president was told by Texas ranchers, is that there are “bodies lying all over the land,” because many simply die along the way. The president believes that once it is made clear that our border is no longer porous, and once we have a sensible and coherent immigration policy, the crime and despair attendant to our current practices will diminish.

It is long past time that we moved our immigration system from the chain migration and lottery practices which now dominate to a merit-based system more consistent with those of Canada and our other peer nations. The Democrats, and their allies among open-borders advocates, have little incentive to cooperate, since they believe those who enter through chain migration and the lottery, dependent as many are on our welfare system, are likely to become supporters of their party.

Still, that welfare system, in many of our cities, is now under incalculable strain, and the future of the country, and American greatness itself would be far better secure if we are able better to control access to the nation and to implement policies which will lead to greater prosperity for those of us here now and those likely to join us in the future.

Partisan agendas and incessant and irrational hatred of this president should not continue to stymie a solution to our border crisis, if we can help it. Right now only one branch of our government, the executive, appears to understand that. It is past time for both the Congress and the judiciary to cooperate to facilitate rather than to frustrate much-needed change.

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Photo Credit: Tom Brenner/Getty Images

About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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