What the immigration battle could look like under Trump
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Washington (CNN)The
high stakes battle over immigration policy has politicians and thinkers
on all sides of the spectrum preparing for battles that could last
years -- leaving millions of people in the US unsure of whether they'll
be able to stay in the country.
The
President-elect has made immigration a focal point throughout his
campaign, from his first announcement that he was running in the 2016
race -- where he immediately sparked controversy with accusations that
some Mexican immigrants were criminals and rapists.
From pledging to build
a wall along the Mexican border to saying he would mass-deport millions
of immigrants living in the US illegally and saying he would block
foreign Muslims from entering the country (a position he later
moderated), Trump has repeatedly pledged a hard-line stance on
immigration as one of the key reasons to vote for him.
The
hard-line statements with shifting details have left millions of
Americans uncertain about their future status in the US. More than
700,000 undocumented immigrants who came to the US as children are
protected currently by a deferred action program established by
President Barack Obama, and another 4 million to 5 million were eligible
for protection under a similar program for parents of US citizens and
lawful residents that was blocked by federal courts. Many of the
families' information could be in federal systems, allowing for targeted
removal under a Trump administration.
Since
being elected, Trump has signaled he may take a softer approach on some
issues rather than the strident tone he struck during the campaign.
"We're
going to work something out that's going to make people happy and
proud," Trump told Time magazine about the so-called DREAMers, young
people brought to the US as children who meet certain education and work
requirements. "They got brought here at a very young age, they've
worked here, they've gone to school here. Some were good students. Some
have wonderful jobs. And they're in never-never land because they don't
know what's going to happen."
Here's a look at where some of the fights on immigration policy may take place under President Trump.
Executive actions
There
are a number of actions Trump can take his first day in office. He has
pledged to roll back Obama's immigration executive actions, which would
include deferred action, on Day One. He also has pledged to step up
enforcement of deportation orders and immigration laws, which he could
immediately direct federal enforcement agencies to do.
Trump
also would have authority to instruct agencies to up their screening
for visa applicants, including refugees, said Stephen Yale-Loehr, an
immigration attorney and Cornell Law professor. While Trump likely
couldn't block entire groups from non-refugee visas without
congressional action, he could unilaterally mandate high-level scrutiny
on applicants from certain countries, making the process difficult for
them to enter the US.
He
could also immediately kick off the rulemaking process to roll back
Obama-era regulations, like one making it easier for students to extend
their authorization to study in the US if they go into a science,
technology or math field.
Once
Trump's Cabinet officials are confirmed by the Senate, they will also
have latitude within their agencies, especially in the departments of
Justice and Homeland Security, which work together to enforce
immigration laws. For example, the attorney general can overrule
decisions by the Board of Immigration Appeals, the highest immigration
court in the land, and has the authority to appoint judges to it, as
Washington University professor Stephen Legomsky points out. Legomsky
has consulted with Democrats on immigration.
Trump
has selected Alabama Republican Sen. Jeff Sessions, an immigration
hard-liner, as his nominee for attorney general, and retired Gen. John
Kelly, whose immigration policy positions are little known, for Homeland
Security.
"Given his nominees for
both the Justice Department and DHS, I think they're going to full bore
ahead with day one telling the border patrol: 'Start enforcing the
law,'" said Hans von Spakovsky a legal and immigration expert at the
conservative Heritage Foundation.
Von
Spakovsky said the enforcement could entail turning people away at the
border, locking up and deporting anyone who is caught in the US
illegally and moving to deport those that the government already knows
are here illegally, including people who may have registered for
deferred action.
"All of that can
be done on day one and that's going to immediately start not only
reducing the population that's in the country, but it will have an
immediate effect on the flow into the country because the message will
go out."
Legislative fights
Beyond regulations and executive actions, many of Trump's policies will require acts of Congress.
Building
a wall along the border, or simply extending the fence that already
exists or beefing up security, will likely require appropriations from
Congress to pay for it. And restricting the number of visas given to
people entering the country legally would also require legislation.
Already,
some legislative fights are emerging. Sens. Lindsey Graham, a
Republican from South Carolina, and Dick Durbin, a Democrat from
Illinois, have introduced legislation that would extend the protections
of deferred action to immigrants brought to the US as children. It's
unclear if that would get a vote in the Republican-controlled Congress
next year.
In 2013, the Senate
passed a bipartisan immigration reform bill negotiated by eight
senators, all of whom are still serving in Congress. But the House never
acted on the bill, arguing for a piece-by-piece approach that would
start with border security.
House
Speaker Paul Ryan and Senate Majority Leader Mitch McConnell will likely
take their cues from Trump, but the first steps could be putting money
in a budget bill that will appropriate government funding starting in
April to beef up enforcement and border security.
But
if lawmakers try to start putting together immigration legislation,
they will likely end up needing a comprehensive package to address how
it's paid for and how it works together, said Stephanie Martz, a
lobbyist who worked as a key staffer on the Gang of Eight bill when she
worked for New York Democratic Sen. Chuck Schumer -- now the minority
leader.
"You
start pulling on the thread of the sweater and you realize quickly you
can't do it piece by piece," Martz said. "These issues are always like a
giant Rubik's cube, you often hear Republicans (say what) needs to
happen is for things to be passed piecemeal -- 'If we secure the border
first, we can do other things' -- but you need to figure out how to pay
for border security." The Gang of Eight bill raised money be charging
more for visas and reforming the legal immigration system.
Conservative
Republicans largely opposed the bill because it created a way for
people living in the US illegally to seek citizenship.
Another
piece of legislation that could move quickly could be what's known as
"Kate's Law," named after Kate Steinle, a young woman who was shot and
killed by an undocumented immigrant that had repeatedly violated his
deportation order and re-entered the country. The bill would institute
escalating mandatory minimum prison sentences for anyone caught
illegally re-entering the country in violation of a deportation order.
Von
Spakovsky predicted that further legislation and more aggressive
deportation may wait until the results of executive-led stepped-up
enforcement become clear. Incoming White House chief of staff Reince
Priebus did not list immigration in a recent interview with Hugh Hewitt
where he laid out the legislative priorities of the first few months of
next year.
Sanctuary cities
Beyond the Beltway, major fights are already shaping between state and local governments and the federal government.
Many
cities have designated themselves as "sanctuaries," meaning they will
not help the federal government enforce immigration laws. Efforts
include not expending law enforcement resources on catching undocumented
immigrants, and refusing to turn over information about undocumented
individuals to the feds.
The
city of Chicago approved a $1.3 million budget amendment last week to
create a legal protection fund for immigrants, and the mayors of New
York and Los Angeles signed a letter with more than a dozen others that
Chicago Mayor Rahm Emanuel presented to the President-elect at Trump
Tower asking him to extend the deferred action program.
Conservatives
have threatened to punish sanctuary cities and states by cutting off
federal funds if they don't cooperate. That could include DOJ and DHS
grants, and Congress could vote to remove more federal funds. Von
Spakovsky said the government could even sue sanctuary cities to turn
over the names of undocumented residents.
"Any
city mayor who defies that court order, they could be held in contempt,
they can be fined or jailed, the same way defiant mayors in the civil
rights era were fined and jailed for defying court orders," von
Spakovsky said.
Court battles
Sanctuary
policies, which are also being pursued on college campuses, are almost
sure to spur court action, both from the feds trying to enforce policies
and local governments fighting back if funds are taken away.
But it won't just be sanctuary fights that tie up the courts.
Just
as Texas successfully blocked Obama's effort to extend deferred action
to parents through protracted legal battles, Democrats could take a page
from Republicans' book and use litigation to slow down immigration
rules and laws.
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