Trump Can Still Do Damage Through Executive Orders
Guest blogger: Nick Wagener, law student, University of San Francisco
As of writing this, Donald J. Trump has 60 days left with the title of President of the United States. The President has thus far spent the time he has left focusing on his wild claims that the 2020 election was stolen by a mass conspiracy of voter fraud, something which many in the field of immigration can begrudgingly accept. The logic goes that if he’s busy with his vein effort to subvert democracy, he hopefully won’t be able to focus any time on enacting more of the reckless policies that he has spent the better part of the past four years implementing.
But he still has the Office of the Presidency, which means he has 60 days in which he still holds the ability to use executive orders. This is essentially one of the two effective means in which he can make substantial immigration policy decisions given the lethargic state of the legislature now that most of the legislative representatives from both houses have accepted that the president is a lame duck. Depending on the nature of the order, the executive orders would be both subject to judicial review, and would likely be reversed in the early days of the Biden administration. However, the bureaucracy of the government is vast, and the Department of Homeland Security can still enact internal policy changes that could also have a negative effect and might end up staying in place longer in the Biden administration. So let’s look at what Trump and his administration might still do.
The largest ticket still on Trump’s agenda would be birthright citizenship, a long-time goal of his policy advisor Stephen Miller. Rumors have swirled in the news media in recent days that Trump is keen to sign an executive order that effectively ended the United States’ policy of birthright citizenship. Such an order would require drastic change to how we determine who has the right to citizenship.
The good news on this front is that such an order will undoubtedly be subject to legal challenges, probably within a day of its enaction. Proving that the order is legal would be difficult, as there is a long line of cases such as United States v. Wong Kim Ark and Plyler v. Doe which would suggest that the 14th Amendment does ensure citizenship to those born within the borders of the Unites states. The order would also almost certainly be rescinded by Joe Biden when he assumes office.
But Trump could implement his goals at the policy level within the Department of Homeland Security. One policy that has been pushed for over the past few years are the Asylum Cooperative Agreements. These policies seek to have migrants in the process of litigating claims for asylum sent to countries such as Guatemala, El Salvador and Honduras to make their cases. The policy has already been approved by the DHS and the President, however getting these agreements to take effect has been difficult thus far. Guatemala was the only country to actually begin this process, but the global pandemic effectively stopped the program in its tracks. Making the situation even worse for the Trump administration, these countries have been hit by a series of hurricanes over the past several months, making implementing the programs even harder. Nonetheless, there have been news reports of DHS officials renewing their attempts to have the agreements up and running before the presidential transition.
And lastly there has been movement in the past week within the DHS on the policies surrounding work permits for undocumented immigrants. Previously, undocumented immigrants who have been subject to an order for removal, but have not yet been actually removed for various reasons, have been able to secure work permits for the interim time. But the DHS announced that they now seek to end this policy, leaving those migrants with no ability to find work and earn money while they remain in the United States. The DHS stated that the implementation of the policy would lower “the incentive for aliens to remain in the United States after receiving a final order of removal and to strengthen protections for U.S. workers.”
Trump lost the 2020 election. And it is unlikely that any of the policies discussed here will be able to stand for long. But he has 60 days to try. That means 60 more days of migrants in this country living in fear and persecution. We should never forget that.
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