When President-elect Donald Trump takes office in January, he will assume broad power over enforcing the nation’s immigration laws, such that he could dramatically reshape immigration policy on his own.
As The National Immigration Law Center, a nonprofit advancing rights for low-income immigrants, explains, the president has plenary authority to enforce immigration laws and manage agency priorities. As chief executive, he may prioritize resources to meet policy goals, and set the prosecutorial direction of agents on the ground — that is, he may identify which classes of illegal immigrants should be investigated, arrested, and prosecuted.
Accordingly, here are campaign pledges Trump could implement on his own authority to reform the Obama administration’s immigration regime.
Repealing the DACA Order
A U.S. Department of Homeland Security directive issued in 2014 expanded a program that allowed individuals who immigrated illegally to the United States as children to obtain work permits and renewable two-year deferrals from deportation. The 2014 directive expanded this program, allowing the parents of such individuals to obtain work permits. It also increased the deferral period from two years to three.
The president could simply issue an order requiring the Department of Homeland Security to rescind this directive. Even the work permits obtained by individuals using this program could be revoked, and no judicial review mechanism exists for such individuals to appeal the decision. (RELATED: Major Obama Lawsuits Are Probably Done Under Trump)
The Refugee Act of 1980 gives the president sole authority to set standards for admission of refugees, including the overall number of refugees admitted into the country.
8 U.S.C. § 1157(b) reads:
If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under [the usual refugee provisions], the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation.
Trump could fix the number of refugees at zero, or could simply determine that an emergency refugee situation does not exist, therefore ending the matter.
Ban on Islamic immigration
Trump has since modified his infamous proposal to temporarily ban Muslims from immigrating to the United States — he now says he supports temporarily halting immigration from countries with high instances of violence by religious extremists.
The Immigration and Nationality Act gives the president sweeping authority to ban certain classes of immigrants from entering the United States, should he determine such a ban is in the national interest.
Though it appears increasingly unlikely he will move forward with a ban on Islamic immigration because of the attending legal quandaries, his position may be on firmer legal footing than it appears. The plenary power doctrine, which still persists in the nation’s caselaw despite steady scholarly criticism, holds, among other things, that many constitutional protections do not apply in the immigration area. For example, the U.S. Supreme Court has previously approved a ban on Marxists from entering the country, despite First Amendment caselaw banning viewpoint discrimination.
As University of Chicago Law School professor Eric Posner explains, this assumes that the federal courts would follow their own precedent were a ban specific to a particular religion promulgated by Trump. It is equally possible that the courts could overturn these doctrines and announce a new set of rules.
The question of religious tests aside, Trump would have a much easier time halting immigration from conflict areas, independent of the question of faith.
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