With the House of Representatives now in its August recess and the Senate soon to follow once it deals with some unfinished business, it is appropriate to review the status of the Trump administration’s immigration policy.
Shortly after President Trump took office, the Department of Homeland Security revised the rules about who was subject to arrest and deportation. Under the Obama administration, unauthorized immigrants who committed serious felonies like armed robbery or assault were subject to deportation. But then-Secretary John Kelly, now the White House chief of staff, told NBC’s Chuck Todd in April that “where on the spectrum of criminality we operate has changed.” So “even a single DUI, depending on other aspects, would get you into the system.”
Since President Trump took office in January, numerous news reports have highlighted increased arrests and deportations of unauthorized immigrants living in the United States. And yet, Mr. Trump’s signature goal, the travel ban, has wound up in court so many times that it causes the head to spin. Even more, the current iteration of the travel ban, which several states, including Massachusetts, have challenged based on religious discrimination and equal protection, is currently being considered in two major federal courts. The administration has argued that a 90-day suspension of people coming from six predominantly Muslim countries in the Middle East and a 120-day halt to refugees were necessary to review how people are vetted when they come to the U.S.
But let’s be clear about what it is we are talking about when we talk about unauthorized or undocumented immigrants. There is nothing “illegal” about a person overstaying their visa — a travel or educational document that allows them to have a presence in the United States for a specific purpose or a specified period. Those here whose visas have expired do not face criminal penalties. Because it is a civil matter known as “unlawful presence,” such a person may be subject to deportation.
On the other hand, those entering the United States without authorization or documents may face charges of a misdemeanor, not a felony, if found guilty beyond a reasonable doubt. They too may be subject to deportation.
Most estimates indicate that half of these immigrants pay income, sales, property, or excise taxes amounting to around $12 billion a year. To argue that they are a financial burden on Americans does not ring true, considering those dollars.
According to a Pew Research Center report, about one-third of the people work in “service jobs, such as janitor, childcare worker, or cook,” and an additional 15 percent “hold construction or extraction jobs.” Pew also noted that only 5 percent “hold management or professional jobs,” whereas a profusion of these workers may be found in landscaping and housekeeping. The center also noted that wages for unauthorized immigrants were far lower than for others working in the same areas, and thus they pay lower income taxes.
The most efficient way that immigrant workers legally, if only temporarily, came to work in the United States was through the granting of H-2B summer visas. But only 33,000 were issued this year, and they were all gone by mid-March. Only recently did Homeland Security on an emergency basis increase that number by 15,000, which was too late for most Island businesses. On the other hand, President Trump’s Mar-a-Lago resort in Florida announced during the president’s “Made in America Week” in July that there are openings for 70 foreign workers starting in October.
But what about the status of the travel ban? Why and indeed how could it have wound up simultaneously in two high courts: the United States Court of Appeals for the Ninth Circuit and the U.S. Supreme Court? This must be one of the most intriguing judicial questions that has happened in a long time.
Typically, a case reaches the Supreme Court in a very clear pattern: It starts in a lower court, moves to a court of appeals, and then, if the justices garner sufficient votes, the highest court in the United States. At the very end of its term in June, the justices accepted for argument the Trump travel ban, which the Ninth Circuit had overturned when a three-judge panel unanimously ruled that the president exceeded the authority delegated to him by Congress.
When the Supreme Court accepted the case, which is scheduled to be heard on Oct. 10, the justices temporarily allowed the administration to halt people arriving from six specific countries in the Middle East, and refugees from around the world. The exception was that foreigners could seek visas if they could prove they had already enjoyed “a real relationship” with someone in the U.S. This could be a relative, a college or university, or an employer. That phrase is key: what constitutes “a real relationship?”
The Justice Department then narrowly limited the relationship to “close” ones, namely a parent, a parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or sibling (either whole, half, or step). The rationale was that these categories were those within the Immigration and Nationality Act of 1952. But a federal district court judge in Hawaii widened the definition to include grandparents, aunts, uncles, nieces, nephews, cousins, and brothers- and sisters-in-law.
So, the Ninth Circuit will deal with categories, while the U.S. Supreme Court will deal with the president’s overall authority to implement a travel ban, especially considering its religious and equal protection aspects. A glitch is that by the time the Supreme Court hears the case in early October, the 90-day/120-day suspension will have passed, which would make the case moot unless the President extends the order.
It is hard to keep up with all these confusing goings-on. Then again, it is very hard and confusing, if not impossible, to keep up with everything happening in Washington these days anyway.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.
