Election Issues and Immigration #5: Analysis of Trump's Immigration Speech and Comparison to Clinton's Policies

What Is Going on With Trump on Immigration?

Usually, I start my blog posts on election issues and immigration with an introduction. However, today we will jump straight into an important issue. In writing about immigration issues and the Presidential election, I am confident in my ability to provide a perspective informed both by my extensive experience as an immigration attorney and my core conservative principles. However, there is some element of cooperation that should be expected from the relevant parties. That is, the candidates should offer a clear and distinct idea of what their immigration proposals are, for without knowing that, it is hard to evaluate their merits. There is one candidate who, over the past couple of weeks, has not been entirely cooperative.

While Donald Trump has been perceived as being a stalwart immigration enforcement hawk, we catalogued some of his many vacillations on immigration policy issues during the Republican Primary [see blog]. We will not rehash all of Trump's flip flopping on immigration over the past few weeks, but perhaps the most glaring example was when Trump, on August 25, suggested that aliens in the country illegally could obtain legalization through paying back taxes, a position that he mocked some of his opponents for taking in the Primary as he advocated for a deportation force.¹ During the Primary, Jeb Bush was among those routinely attacked by Trump for being soft on immigration. Bush, one of my preferred candidates a few months ago [see blog], noted the irony: “All the things that Donald Trump railed against, he seems to be morphing into — it's kind of disturbing.”²

Apparently realizing the need to provide some semblance of clarity, Trump decided to give a speech on immigration policy on August 31, 2016. In this article, I will examine Trump's speech and explain my perspective on what it says about how he may be as President on immigration. Furthermore, I will examine the Clinton campaign's positions on some of the same issues presented.

Trump's Speech

Donald Trump's much-anticipated immigration speech [link] contained ten key policy points. The points are as follows:

1. Build a wall along the southern border;
2. End catch-and-release;
3. Zero tolerance for criminal aliens;
4. Block funding for sanctuary cities;
5. Cancel unconstitutional executive orders and enforce all immigration laws;
6. Suspend the issuance of visas to any place where adequate screening cannot occur;
7. Ensure that other countries take their people back when we order them deported;
8. Complete the biometric entry-exit visa tracking system;
9. Turn off the jobs and benefits magnet; and
10. Reform legal immigration to serve the best interests of America and its workers.

Before continuing, please note that I will try to judge the speech on its own merits. Given Trump's flakiness, one would not be surprised to see him abandon many of the aspects of the speech at any moment between now and the election. Since it is impossible to know which points he will stick to throughout the rest of the election, much less if he takes office, I believe we should assess his current positions as he presented them. If Trump modifies or changes any of his key positions, I will address the changes at a later date.

On the whole, the speech was lacking. Trump continued in his modus operandi of making fantastic promises and giving the distinct impression that he has little command of the subject matter of which he speaks. But, by the soft bigotry of the low expectations that one should have of an election that is best described as a porta-potty fire [see blog], there were positive things to take away. Trump appeared to back away from some of his ridiculous positions, such as advocating for mass deportations, and at times alluded to sound policies that were argued for effectively by many of his opponents in the Republican Primary.

Analysis

As someone who plans to vote for Trump, I would have liked to see him abandon his asinine wall. Little needs to be said of Trump's wall besides the fact that it is a fantasy, and the only redeeming aspect of his proposal is that there is no way it will ever happen. Whether it is to Trump's credit or detriment that he is likely aware of this is for others to judge.

At one point, Trump pledged to initiate removal proceedings against any alien “who [is] arrested for any crime whatsoever.” This pledge is not only unlawful, but also absurd. The arguments against President Obama's current deportation priorities are that they take the concept of “prosecutorial discretion” too far and deprioritize deporting certain classes of persons who should be higher priorities. However, for very good reasons, the current laws do not provide the President with the authority to place an alien into removal proceedings merely for being “arrested” for “any crime.” Fortunately, in a different passage, Trump stated that “we will set priorities” and “[a]nyone who has entered the United States illegally is subject to deportation…” We can only hope that Trump's true position is to set priorities based on the actual immigration laws and not to willfully violate them in order to maximize deportations.

Trump pledged to repeal both DACA and DAPA. On this point, my position is well documented, specifically with respect to DAPA [see blog]. Even one who supports the executive actions can concede that the principles of procedural regularity were not followed. My position is that neither the INA nor the concept of “prosecutorial discretion” confers upon the President the power to take the actions he did without Congressional authorization. Trump was correct to note that Clinton not only supports President Obama's executive actions, but pledges to go even further. Changing the way that President Obama has unilaterally sought to make new immigration law would go a long way toward reaching a permanent solution on the issues DACA and DAPA seek to address.

Trump highlighted the dangers of admitting aliens from dangerous regions where “adequate screening cannot occur.” In so doing, he interestingly, he referenced a Pew Research Survey on attitudes in the Middle East that I referenced in discussing the current refugee/migrant crisis and offering a critique of the policies of President Obama and Clinton on the issue [see blog]. Trump stood by his controversial idea for “screening tests.” While Trump did not offer specifics on how this would be implemented, it is important to recognize that no person has a right to immigrate to the United States. Considering that the safety of the American people should be a primary concern in making immigration policy, there is nothing un-American about ascertaining the views of prospective immigrants on issues such as “respect for women and gays and minorities, attitudes on [r]adical Islam, and many other topics.” Beyond the general principle, the onus will be on Trump to deliver actual proposals to demonstrate that he is capable of not only speaking in platitudes, but also implementing sound policy.

Trump promised to complete a biometric entry-exit visa tracking system. This is important in the sense that it addresses visa overstays, something that Trump has been loath to focus on during his campaign. An entry-exit system should be a crucial first step in a long-term effort to reform our immigration system. While Trump offered no specifics as to this point, it was heartening to see him focus on this point instead of exclusively on illegal border crossings from Mexico.

Trump proposed implementing E-Verify nationwide to “turn off the jobs magnet.” I have documented my problems with E-Verify on the blog before [see blog], and to be fair, Trump is far from the only candidate to suggest expanding E-Verify without addressing its deficiencies [see e.g., Marco Rubio].

Trump's last of the ten points was somewhat encouraging. He proposed to “reform legal immigration to serve the best interests of America and its workers.” To this effect, Trump suggested, among other things, that we should select immigrants “based on their likelihood of success in U.S. society, and their ability to be financially self-sufficient.” Furthermore, he suggested that we should “choose immigrants based on merit, skill and proficiency.” If we are looking for bright spots in the speech, it was good to see Trump point toward an immigration policy focused on finding people ready to contribute to American society. Reorienting our immigration system to reward those most ready and able to contribute to the U.S. economy must be a central part of any future “comprehensive immigration reform” efforts.

Amnesty, Touchback Amnesty, or Something Else?

One of the most peculiar moments of the speech was when Trump decided to debate himself in the conclusion. First, Trump stated that “you cannot obtain legal status, or become a citizen of the United States, by illegally entering our country.” Furthermore, he stated that “you can't just smuggle in, hunker down, and wait to be legalized.” Here, it sounds like Trump definitively opposes legalization for any alien who is here illegally and does not depart. The wording of the passage would seem to leave open the possibility for “touchback amnesty,” where such an alien could leave and then apply for legalization, a concept Trump has generally supported [see blog for a brief discussion of the concept]. Yet, in the very next passage, Trump states that “in several years” after his enforcement goals are met, “we will be in a position to consider the appropriate disposition of those who remain.” To put it succinctly: Huh? In one passage, Trump implies that no legalization will be available, but in the next he suggests that it may be possible after his goals are met.

To be clear, given good enforcement measures, Trump's second approach is the one that I prefer. The first step to immigration reform should be passing comprehensive new enforcement measures along with ways to measure their impact. Once the border is secure and enforcement of visa overstays is improved, we can move on to, as Trump said, considering “the appropriate disposition of those who remain.” If legalization is introduced without effective new enforcement measures, it will only serve to leave us having the same debates all over again. However, if legalization is introduced after we have improved enforcement and made it easier for highly skilled aliens and those willing to do needed jobs [see blog] to obtain status in the United States, we can be more confident that the legalization will not serve as a perverse incentive for further illegal immigration.

The reason why Trump's idea for touchback amnesty is problematic is because it is the worst of both worlds: it incentivizes further illegal immigration activities by showing that it is possible to be present illegally and obtain legalization expeditiously, and it is unlikely to entice many aliens who are here illegally to depart due to the risk of not being readmitted. Because the debate over touchback amnesty is an important one, I will make it the topic for my next blog on immigration and the election

Comparing to Clinton

While I remain unenthusiastic (to put it mildly) about Trump on immigration policy, the alternative is not offering much in the way of sound policies. Barring some unforeseen event, the next President will either be Donald Trump or Hillary Clinton. On immigration, Clinton sets such a low bar that it is possible for even Trump to clear it by making a few half-baked yet half-decent observations.

On her campaign website [link], Clinton pledges to introduce comprehensive immigration reform within her first 100 days in office. As we will see, Clinton's proposals are geared toward legalization and weakening the INA's immigration enforcement provisions.

For example, Clinton not only supports DACA and DAPA, but she has also suggested further expanding the class of eligible aliens with subsequent executive actions. To this effect, she states “[i]f Congress keeps failing to act on comprehensive immigration reform,” apparently seeing Congress as little more than a rubber stamp for her agenda. This is the same principle that President Obama has acted upon in circumventing Congress to advance his preferred immigration policies.

Clinton proposes to not modify, but rather abolish, the 3- and 10-year bars of inadmissibility [see article]. She correctly identifies how the 3- and 10-year bars can in fact incentivize people to stay illegally once enough unlawful presence has been accrued. However, instead of suggesting modifications or a replacement idea to penalize those who violate our immigration laws while not inadvertently incentivizing them to stay longer, she devotes her attention to creating ways for them to obtain legalization outside of the current allowances for unlawful presence waivers and provisional unlawful presence waivers [see article].

Finally, Clinton not only opposes Trump's suggestion that it may be appropriate, given security concerns, to suspend the issuance of visas to certain countries, she supports admitting 65,000 refugees from Syria instead of the 10,000 that President Obama has sought to admit annually. While there are many issues with many of Trump's statements on these issues, Clinton goes to the extreme in the other direction, proposing to massively increase refugee admissions without suggesting how she can do this while protecting the American interest and ensuring the security of the American people.

Conclusion: Trump and Clinton

In short, the election is still a porta-potty fire. On the National Review Online, David French made an interesting point about Trump's speech: “everything about the tone and flourishes of his speech seem calculated to repel.”³ In short, French's argument is that while Trump made several valid points about enforcing our immigration laws and who we should want to admit as immigrants, his speech was not delivered in a way to persuade those who prefer more “liberal” policies. To the contrary, French argued that “[Trump is] blazing the trail for open borders, amnesty and a path to citizenship” (note that I support a path to citizenship for some of the people here illegally under the right circumstances).

I agree with French that even on the occasions when Trump has a good message, he is far from the best person to persuade those not already inclined to it to his side. This is in part because of the toxicity of Trump's campaign in general and in part because of his speaking style. Granting that, it is important for both voters and the media to more carefully scrutinize Clinton's immigration platform. As constituted, Clinton seems to have little interest in making our immigration system more merit-based and focused on America's needs, and great interest in pursuing legalization right away and weakening immigration enforcement. Considering that the preponderance of polling suggests that Clinton will more likely than not be the next President, it is well past time for the media and for voters to scrutinize the sensibility of her immigration policies with the same vigor that they have scrutinized Trump's along with his often absurd pronouncements. If Clinton is to be the next President, we can only hope that pressure from those who support sensible immigration reforms will prompt her to take a more balanced approach to the issues than she has suggested thus far in the campaign.

Please see my main blog for a directory of other posts regarding immigration and the election [see blog]. Please keep an eye out for my next post addressing the debate over touchback amnesty.

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1. Sherfinski, David, “Donald Trump: Some illegal immigrants could pay 'back taxes,' but won't received citizenship,” washingtontimes.com, (Aug. 25, 2016)
2. Gass, Nick, “Jeb Bush rips 'morphing,' 'ahorrent' Trump on immigration,” politico.com, (Aug. 25, 2016)
3. French, David, “Trump's Immigration Speech Made Good Sense Sound Like Extremism,” nationalreview.com, (Sep. 1, 2016)