My US News and World Report Article on Trump's Dictatorial Immigration Power Grabs

The article is coauthored with Cato Institute scholar David Bier.

Yesterday, US News and World Report published my article, "Trump Claims Dictatorial Powers on Immigration," coauthored with David Bier. Here is an excerpt:

During his campaign for president, Donald Trump said he'd only be a dictator on "Day One," when he would "close the border" to nearly all immigrants. True to his word, when Trump entered office, he signed executive orders that sought to rewrite the Constitution and explicitly override the law to restrict immigration.

But those executive orders didn't expire on Day Two. The president is still exercising dictatorial powers on immigration, and it isn't yet clear that anyone will stop him. Several court decisions have sought to rein him in, and the Supreme Court should also intervene, if necessary. Whatever one thinks of immigration, any limits must be imposed lawfully.

Trump's theory of presidential control over immigration goes well beyond his predecessors'. In an executive proclamation issued within hours of being inaugurated, Trump asserted that he has total power to shut down virtually all legal immigration and ignore laws that protect immigrants from wrongful detention and deportation.

The president indicated that he can unilaterally suspend Congress' immigration laws because they are "ineffective," even though the Constitution gives Congress – not the president – the authority to make laws.

To justify ignoring laws such as the Refugee Act of 1980, which allows those who claim they are escaping persecution to enter the U.S. to apply for asylum, Trump relied on the idea that the president is constitutionally authorized to stop "invasions." But illegal migration is not an invasion. Under the Constitution, as Founding Father James Madison put it, "Invasion is an operation of war," not a civilian violating a bureaucratic regulation on where to cross a border….

 

Comments

[Zarniwoop]

Nice article. Cue the Ilya Derangement Syndrome.

[MollyGodiva]

Is there a factual error in the article?

[Roger S]

Yes. Trump did not say that he can unilaterally suspend Congress' immigration laws.

[Yogis_dad]

No need for a cue. Ilya is Patient Zero for TDS.

[Sarcastr0]

Wow, 3 minutes till you came along.

[Martinned2]

Meanwhile, in the DC Circuit, the DOJ is arguing that the President has an inherent power under the constitution to kick anyone he likes, citizen or not, out of the country.

Beyond the statute, the President’s inherent Article II authority is plainly violated by the district court’s order. As a function of his inherent Article II authority to protect the nation, the President may determine that TdA represents a significant risk to the United States, that it is intertwined and advancing the interests of a foreign government in a manner antithetical to the interests of the United States, and that its members should be summarily removed from this country as part of that threat.

https://storage.courtlistener.com/recap/gov.uscourts.cadc.41844/gov.uscourts.cadc.41844.01208720416.0.pdf

[Doug Heffernan]

Then can he kick himself out of the country? Based on the "intertwined and advancing the interests of a foreign government in a manner antithetical to the interests of the United States" stuff.

[damikesc]

He's bringing peace to the Ukraine/Russia conflict. Sorry if that upsets you.

[MollyGodiva]

He took Russia's side, cut off aid and intelligence sharing with Ukraine and wants them to surrender on Russia's terms. That is not "bringing peace", it is causing our former ally to lose the war.

[damikesc]

He took nobody's side. Sorry if neutrality bugs you so.

Ukraine is going to have to give up land. They are not able to recover it. They are, of course, free to continue fighting.

We are free to not fund it.

[David Nieporent]

He took nobody's side. Sorry if neutrality bugs you so.

Neutrality between good and evil does indeed bug me. Sorry if it doesn't bug you.

But this is a red herring, because he isn't being neutral; he's taking Russia's side. If Trump just said, "The U.S. is going to be isolationist and will no longer play any role," that'd be one thing. But instead he's taking an active role… in pressuring Ukraine to surrender. He's taking an active role… in trying to extort money from Ukraine. (Not even in exchange for continued support, but just because.)

[SRG2]

Right, you poor benighted fellow traveller.

[Martinned2]

Given that the argument is that any judicial review would be unconstitutional, no statutory language matters in their world. Without judicial review, compliance with the law is strictly optional.

[Brett Bellmore]

Spoiler: What's the first word of "Alien Enemies Act" being relied on here?

I think you need to cite the exact language backing up your "citizen or not" claim.

[Martinned2]

The part where a) they're arguing Trump doesn't need a statute, and b) any judicial review would be unconstitutional.

[Sarcastr0]

Read the comment again, Brett.

[Brett Bellmore]

The comment says, "Meanwhile, in the DC Circuit, the DOJ is arguing that the President has an inherent power under the constitution to kick anyone he likes, citizen or not, out of the country."

So far as I can see, absolutely nothing supports that "citizen or not" claim.

Look, I absolutely get the idea that, if there is inadequate due process, citizens could be swept up, possibly even deliberately if you take a really dark view of the administration's goals.

But the claim wasn't that it would happen accidentally if there was too little due process.

The claim wasn't that it would be done deliberately and covertly, enabled by too little due process.

The claim was that the DOJ was arguing that the President could kick out anyone he likes, citizen or not.

And that's simply, unambiguously, false. They argued nothing of the sort.

[Sarcastr0]

inherent power, Brett.

That does mean the President can kick out whoever he likes.

I love that you're saying 'well there will totally be due process so it's okay.'
This is a huge power grab from the legislature, regardless of due process.
And claiming this Admin gives a fig about due process is cannot be seen as other than self delusion.

[NvEric]

So, all presidents have this inherent power ?

[Sarcastr0]

None of them do. Trump is arguing he should be a king.

[Martinned2]

What part of "inherent" and "summarily removed" do you not understand? Nothing in the DOJ's argument hinges on the person being removed being a non-citizen. Nor does its argument hinge on any sort of process being due.

[Dr. Ed 2]

Ilya's crying "Wolf" -- again...

[DaveM]

His predecessor's claim resulted in tens of millions of people coming here on what are very likely false pretenses of asylum, and other millions here without authorization of any kind. More improper and illegal migrants than the population of my own state of Virginia!

Trump has restored order. The number of people crossing the Darien Gap is down 99% since he took office.

So don't tell me Trump is the villain. That's preposterous.

[MollyGodiva]

How does Trump have any sway over people crossing a jungle in Central America?

Also putting migrants in lawless concentration camps will cause less to migrate, but that does not make it a legitimate policy.

[Life of Brian]

How does Trump have any sway over people crossing a jungle in Central America?

If you were looking for an actual answer, because they generally stop crossing that jungle in such vast numbers after word trickles back that the door to the promised land will be closed when they arrive.

Sorta like how they ramped up after the word trickled back in late 2020 that the door would thereafter be wide open.

I'm sure there's some sort of Occam-molesting, Rube Goldberg-worthy alternative explanation making the rounds -- have at it.

[NvEric]

Governments and the Law are not ever legitimate.

[Sarcastr0]

tens of millions! https://www.migrationpolicy.org/article/biden-immigration-legacy says 5 million allowed into the United States, 2021-24
other millions! (no source)
very likely! (speculation)
down 99%! (wrong number used)

Your numbers are wrong; your rate is based on total encounters, and your 'very likely' is rank speculation.

Yes, Trump is a villain. And you need to delude yourself to pretend otherwise.

[Life of Brian]

Your own source says 8.6M "encounters" during Biden's reign. If you really think that's remotely close to 100% of the actual warm bodies that crossed, well, bless your heart.

[MollyGodiva]

The problem we have in the US is not warm bodies crossing the border, but the cold hearts that already live here.

[Life of Brian]

Poignant rhetoric is easy. How many non-citizens do you and your no doubt exceptionally warm heart personally house in your residence? Heck, I'll even give you credit for putting them up in an outbuilding!

[Hyronymous]

The answer to people breaking the law isn't to also break the law.

I know that I have no objection to ending birthright citizenship, asylum rights, etc. But...

1) Breaking the law is breaking the law. If you think that the laws of the land should change, then change them. And if you can't win that vote, then that's just the will of the people. (And, you probably shouldn't have politicized the topic so extremely that no one can vote for reasonable things without feeling like a schmuck.) Trying to circumvent all of that is just as much being a criminal as those trying to sneak over the border.
2) The impact of asylum laws and illegal immigration are tiny. I'm opposed to them because I disagree with Jesus on the whole duty of mankind to unthinkingly give their possessions to those of greater need - that just creates an expanding pool of people who mooch for a living - and I think that creating a brain drain on Mexico is slowly causing the country South of us to become increasingly controlled by criminal organizations and thus become more of a long-term risk to America. But in terms of taxes, finances, jobs, etc. China is a competitor because they've just got so many people. The more people you have, the more you can do. We make more products and make more money because of having a larger work force that's willing to work for cheap; they were educated on someone else's dime; most of them retire back to Mexico so there's limited impact on Social Security, Medicaid, Medicare, etc.; and any that want to convert to citizenship need to prove that they were paying taxes before they're allowed to do so. There isn't a slam dunk position on this. As a pro-business Republican who doesn't go in for all the Christian/socialist/benevolent crap; it's still not clear that it's a system worth shutting down. And certainly it's not such a giant concern that your average person should really give a rat's ass either way, let alone turning it into a bigger issue than say how to reduce corruption in government and penalize politicians for breaking the law.
3) Circumventing the Constitution, to ram through change on an issue that's 99% TV drama for the sake of making political news as popular and interesting as sports news and 1% an actual topic of merit, just ain't worth doing.

[Stupid Government Tricks]

Hyperbole like "dictatorial" does not lead me to think the article gets any better.

[Noscitur a sociis]

It’s like a traffic jam when you’re already late.

[Drewski]

Completely fair, and likewise we can assume your comments are worthless if you also engage in exaggeration. I mean, you wouldn't hypocritically criticize someone, right? That would be pretty low. Let's jump down one article and look at your first comment there:

"Unlike lawyers, who rejoice in mucking up the system to their advantage."

Huh. Presumably the comment you made immediately before this one. Weird.

[SRG2]

Cato Institute scholar? Must be some kinda Marxist. right?

[Purple Martin]

Debate on "The president is still exercising dictatorial powers on immigration," started the week after Trump's inauguration but was relatively overshadowed by the chaff of Musk's chaos-mongering.

The Mahmoud Khalil ICE detention last week kicked it into a higher gear, which probably spurred an ahead-of-plan publication of the US News & World Report article Somin & Bier had already been writing. But, as noted in a Bulwark article (also yesterday), far broader and more consequential principles are at stake (emphasis added):

Khalil, who helped lead Columbia University student protests after October 7th, was detained last week by ICE and sent to a facility in Louisiana……the circumstances of his detention—he is a green card holder with the legal right to remain with a distraught, 8-month-pregnant wife—have turned him into a cause, not just for free speech advocates but for immigrant-supportive groups and lawmakers who warn of a harrowing precedent being set.

It’s a dangerous slippery slope they’ve started upon, claiming he’s supporting a foreign terrorist organization without bringing formal charges or demonstrating any formal connection to it. What’s to stop them from claiming a legal permanent resident in Texas is somehow helping the cartels without formal charges or any evidence?”
—Rep. Joaquin Castro (D-Texas)

https://www.thebulwark.com/p/mahmoud-khalil-immigration-detention-first-amendment-free-speech-rights

I tend to distrust slippery slope reasoning—it’s mostly: I can't make a case against your present thing, so I'll imagine some terrible future thing, and use that to deny you the legitimate present thing—. But not always.

Trump demonstrates his envy/admiration of Putin in many ways, including clumsy attempts to wield against America, the tools and practices of Putin’s authoritarian Strong Man autocracy. One of those tools is silencing and detention of the wrongthinker, with pretextual justification (perhaps not even that), but without charges. In America, that's both norm-breaking and law-breaking.

So, how does Trump plan to get America there?

1) Taking advantage of defensible norms and arguably lawful practices varying by administration in the past:
• Go after lawbreaking, violent, “really bad guy” illegal immigrants (but with little rigor in the identification process);
• then relatively recent undocumented immigrants';
• then legal asylum seekers;
• then undocumented, decades-long, productive, value-adding-to-society immigrants with strong ties to their communities, faith in American society, and American citizen children.

2) Start breaking norms and testing lawful boundaries, to include charging your target population with legal offenses under thin or nonexistent rationale in existing law:
• Attempt mass deportation of randomly swept-up undocumented immigrants of every description (again, little rigor to the identification process), not just to their home countries, but to bribed or bullied 3rd countries.
• Transport government-deemed bad guys (still little rigor in identification) to American-controlled enclaves outside of American state or territorial control.
• Start designing and planning to build massive detention camps with intentionally punishing conditions, on domestic military bases.
• Break America’s written promise with a near-immediate revocation of humanitarian Temporary Protected Status from a previous administration through dates in Feb-Dec 2026, to 200,000 Haitians, 100,000 Venezuelans, 8,000 Afghans (many had worked for the American military during the Afghanistan wars), and for good measure, 155 South Sudanese (An Act of Congress established TPS in 1990). But keep existing TPS granted to persecuted Christians of various nationalities, and extend new TPS to persecuted-minority White South Africans/Friends of Elon.

3) Test long-standing, firmly established constitutional boundaries:
• Without bringing formal charges, or demonstrating (or even asserting) a formal connection to illegal activities, detain an extremely unsympathetic example of a legal long-term U.S. resident, moving the detainee far from the location of the purported thoughtcrime and his family/support, and blocking access to his existing legal representation.
• Then do the same with naturalized U.S. citizens, starting by asserting without proof, naturalization fraud.
• Extend that to birthright U.S. citizens, asserting without proof, birth-certificate fraud; or that non-citizen parentage cancels constitutional birthright citizenship.
• Take the next step of asserting all challenges to the decrees of the autocratic ruler of America, constitute legal justification to extend all the previous actions to me, you, and every American.

Each level starts with a precedented, arguably legal action (in practice, often skipped), followed by incremental steps gradually moving along a spectrum of Accepted; to Unprecedented; to Challenges of legal boundaries; to various Try-to-stop-me steps of dubious legality; to...You Can’t Stop Me. I didn’t imagine any of them—or perhaps you can tell me which have not already been taken or openly, repeatedly supported by Trump?

Do you ride that slope all the way to its end? Where do you finally jump off?

[Roger S]

Let us know if Trump goes too far with any of those plans.

[David Nieporent]

Schlafly is one of those people who heard Trump called Hitler and thought that was intended to be a compliment.

[SRG2]

Let is know if you disapprove of any of them

[Purple Martin]

Roger, how about...

"Trump administration deports hundreds of migrants, despite judge's order stopping removal"
https://apnews.com/article/trump-venezuela-el-salvador-immigration-dd4f61999f85c4dd8bcaba7d4fc7c9af

Hope you manage to jump off before tanks roll into Montreal—only 60 miles from Plattsburg NY! Versus the approximately 140-mile drive from the Belarus Novi Yarylovychi border crossing, to Kyiv).

Naw, on second thought, you're probably all for that.

[Life of Brian]

Huh. Perhaps I wasn't supposed to actually read the article, but I did: "Boasberg verbally ordered the planes [already in flight and presumably out of the country by the time of the hearing - Ed.] be turned around, but they apparently were not and he did not include the directive in his written order."

Sounds like after his initial "respec my authori-TAH" moment in the hearing he may well have realized the SOP/territoriality/etc. issues were murky enough that he did not indeed want to die on that particular hill.

If new planes continue to take off, we can tune back in to your doomsday channel.

[Purple Martin]

So, you're also waiting for video of tanks rolling into Montreal?

(btw, this is one more part of what's been going on for weeks: probing the courts with various Try-to-stop-me steps of dubious legality... practice for the Courts, You Can’t Stop Me stage.)

[Life of Brian]

If there's an actual question in there somewhere, feel free to state it plainly. You're clearly sixish levels deep in black helicopter territory and I don't have the resources or the inclination to translate it to English.

[James K. Polk]

"...Trump demonstrates his envy/admiration of Putin..."

Yawn. Dismissed.

[Sarcastr0]

“I had a call with President Putin to congratulate him on the victory, his electoral victory,”

“I thought President Putin was very, very strong,”

“Get rid of them. Fake news is a great term, isn’t it? You don’t have this problem in Russia but we do.”

“The man has very strong control over a country,” he said. “Now, it’s a very different system and I don’t happen to like the system, but certainly in that system, he’s been a leader. Far more than our president has been a leader.”

[Purple Martin]

JKP, if you're on Chrome, highlight the following quoted line of text (without quote marks), right-click on it, and from the drop-down menu, select Search Google for "list instances Donald Trump called for someone's execution, or trial for treason"

I'll posit that Trump, after someone sounded out the word and explained the concept to him, loved and envied Putin's power to order literal defenestration (See also: "Kim Jong-un Anti-Aircraft Artillery").

Do you disagree?

[Life of Brian]

It’s a dangerous slippery slope they’ve started upon, claiming he’s supporting a foreign terrorist organization without bringing formal charges or demonstrating any formal connection to it.

Clearly they should have just called him an insurrectionist.

[David Nieporent]

Were you under the impression that the J6 terrorists were deported based on the president's say so, without legal process?

[Life of Brian]

Who's being deported without legal process?

[Purple Martin]

A Chief Executive's explicit or implicit order to the Secretary of State to exercise solo, subjective judgement to, extra-judicially, deport a legal U.S resident exercising constitutionally protected 1st Amendment rights—without bringing formal charges, or demonstrating (or even asserting) a formal connection to illegal activities—is independent of constitutionally-required, affirmed by SCOTUS, law enforcement and judicial legal processes.

[Life of Brian]

Wow, speaking of stating things plainly. You're alleging the notice to appear before an immigration judge to adjudicate his charges was fake?