By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Late Monday night, Trump tweeted he will soon issue an executive order temporarily suspending all immigration into the Unites States:
In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!
— Donald J. Trump (@realDonaldTrump) April 21, 2020
As of the time of publication, we have no further details, other than this naked promise, .
Say what you like about our batshit crazy, logorrheic commander-in-chief: He may lack any semblance of impulse control, but he sure as hell understands politics.
Yves has consistently emphasised that Trump’s executive orders have little legal effect – although by design they have tremendous symbolic value.
So for the latest move. A couple of points. First, all new immigration into the US is de facto suspended already, as the State Department ceased visa processing in the middle of March for immigrants and non-immigrants, due to COVID-19 logistical issues. And second, with the de facto lockdown of the US – including explicit bans on incoming flights from Europe to the United States, and the the ongoing shutdown of most international commercial flight services: how many people, immigrant or not, do you think are entering the US at this time?
Trump Social Media Playbook
Other seasoned observers have caught on to what are by now standard moves in Trump’s social media playbook. Consider, for example, this take from Anthony Zurcher, North America reporter for the BBC:
Donald Trump’s efforts at governing by social media should always be taken with a sizable grain of salt. His track record on following through on Twitter directives is decidedly mixed. The details of his temporary ban on all immigration, announced a few hours before midnight on Monday, will shed considerable light on the breadth – and legality – of his actions.
Still, it is no secret that the president, and several key advisers, have long viewed immigration not as a benefit to the nation, but as a drain. And the text of his tweet, that the move is necessary not only to protect the nation’s health but also “the jobs of its great American citizens”, only emphasises this.
There is little doubt the proposal, in whatever form it takes, will be vigorously opposed by pro-immigration groups, some business interests and the president’s ideological adversaries. That is probably just fine with a man who loves drawing political battle lines and goading his opponents whenever possible.
Four years ago, the president campaigned on an aggressive anti-immigration platform, including a total, if temporary, ban on all Muslims entering the country. Now, with an uphill re-election fight looming, he has found a similarly combative measure to champion.
What Might Trump Do?
In the absence of any clear details, the New York Times nonetheless took a stab at what the forthcoming Trump policy might look like – and emphasised the appeal of tighter immigration controls politically for some of Trump’s base, Trump Plans to Suspend Immigration to U.S.:
But the president’s late-night announcement on Monday signals his most wide-ranging attempt yet to seal off the country from the rest of the world. A formal order temporarily barring the provision of new green cards and work visas could come as early as the next few days, according to several people familiar with the plan.
Under such an executive order, the Trump administration would no longer approve any applications from foreigners to live and work in the United States for an undetermined period of time, effectively shutting down the legal immigration system in the same way the president has long advocated closing the borders to illegal immigration. It was not immediately clear what legal basis Mr. Trump would claim to justify shutting down most immigration.
Workers who have for years received visas to perform specialized jobs in the United States would also be denied permission to arrive, though some workers in some industries deemed critical could be exempted from the ban, the people familiar with the president’s discussion said.
The number of visas issued to foreigners abroad looking to immigrate to the United States has declined by about 25 percent, to 462,422 in the 2019 fiscal year from 617,752 in 2016.
But Mr. Trump’s primary focus appears to be on protecting American workers as the virus ravages what had been a rapidly growing job market.
Even before the pandemic, the president and some of his most hard-line advisers had been eager to reduce legal immigration, arguing that Mr. Trump’s “America First” campaign pledge should be seen as protecting native-born Americans from having to compete with foreign workers.
Stephen Miller, the architect of the president’s immigration agenda, has pushed repeatedly for regulations and executive actions that would limit the immigration allowed each year, arguing that immigrants are a drain on American society, drive down wages and take jobs from native-born Americans.
(I will not here address the embedded assumption in the NYT account that immigration disguises racism, without acknowledging its effect on labour costs. See this 2016 post Questioning Immigration is Not Racism for more on this issue. I include this aside so that astute members of the NC commentariat – which is the best commentariat – don’t charge me with being unaware of this point).
But despite the pearl clutching, the Grey Lady wound up by quoting an expert who suggested that Trump’s final policy, once subject to judicial review, might be much less severe than the tweeted rhetoric. Of course, by the point all is said and done, Trump would have reaped political benefits among supporters for his stance – regardless of the implemented policy consequences:
Franita Tolson, who studies constitutional and election law at the University of Southern California, said in an interview that Mr. Trump’s latest tweet continues a well-worn pattern of issuing broad mandates against immigrants, often as a base-pleasing political cudgel, only to later rework the orders under mounting legal pressure.
Legally, she said, the administration has a habit of working in reverse: issuing sweeping initiatives, and vetting them afterward.
“He tweets out a broad tweet without details, and the administration tailors it to figure out what might pass judicial review,” Ms. Tolson said. She added that Mr. Trump’s latest attempt to issue a restrictive order was sure to meet legal challenges. “Given our infection rate and the lack of testing, he’s taking advantage of a national crisis.”
The WSJ featured a more measured analysis – which concurs with my view that the Trump policy won’t immediately change all that much, Trump to Temporarily Halt Immigration Into the U.S. Amid Coronavirus Crisis:
Administration officials said the order wouldn’t make substantial changes to current U.S. policy. Even without an executive order, the administration has already all but ceased nearly every form of immigration. Most visa processing has been halted, meaning almost no one can apply for a visa to visit or move to the U.S. Visa interviews and citizenship ceremonies have been postponed and the refugee program paused, The Wall Street Journal has previously reported. Migrants caught crossing the border are now immediately expelled once they are found.
The Journal also highlighted expected exemptions the administration will allow – including farmworkers necessary to sow and reap harvests, and health worker needed to treat victims of the pandemic:
The executive order is expected to include exceptions for migrant farmworkers, who make up about a 10th of the workforce on U.S. farms, and health-care workers, particularly those helping treat coronavirus patients, an administration official said. It is not expected to address the removal of immigrants already in the U.S. or the visa renewal process, the official said.
Allowing in farm workers is necessary to alleviate Given the slowly worsening food security situation.
Government By Executive Order
I would be remiss if I confined myself here merely to bashing Trump’s immigration-policy-by executive-order tactic.
For lest we forget, Trump’s sainted predecessor, initiated the immigration-policy-by-executive-order fandango, by a constellation of actions such as attempting to reform legal immigration, enhancing enforcement, and addressing illegal immigration (see this Bipartisan Policy Center summary for further details, Obama’s Immigration Executive Actions: Two Years Later – although I am always inherently suspicious of any organization that calls itself ‘bipartisan)’.
The purpose of this post is not to parse those earlier efforts, some of which were suspended or overturned by courts and most of which Trump promised to undo. They are yesterday’s Macarena.
Now, mind you, that’s not to say that Republicans wouldn’t have worked out the steps to this dance themselves if someone hadn’t first demonstrated them. But following in someone’s footsteps sure made things easier, compared to working out the choreography oneself.
Would only that the last Democratic administration expended more effort on legislation, nominating and confirming judges, or rule-making, for that matter, that could not be easily rolled back under the Congressional Review Act –than on focusing on more ephemeral executive orders.