Yesterday, we debunked the myth that President Trump needs Congress to change the asylum law in order to deport illegal aliens with fraudulent asylum claims. He also has the power to act on the refugee status of unaccompanied alien children (UACs).
A big loophole that is used to foster the Central American invasion is the William Wilberforce Trafficking Act of 2008. It stipulates that all children from Central America (as opposed to Mexico) caught at the border without parents – unaccompanied alien children (UACs) – must be turned over to HHS’ Office of Refugee Resettlement (ORR) and then resettled into our communities and schools. Since many of those coming over the border are children, the president is under the impression that his hands are tied absent a change from Congress.
Here’s the reality. A statute that was designed to protect victims of sex trafficking who were truly destitute and without parents in this country is now being abused to fund a circuitous smuggling operation in which illegal immigrant parents smuggle in their own children. As I noted in my series of articles on the opioid crisis, this is what single-handedly led to the largest flow of drugs into our country and the worst drug overdose epidemic in our history, beginning right after the flow of UACs in 2013-2014.
The relevant statute (Sec. 235(a) of the Wilberforce Act) authorizes the resettlement program only for those children who are 1) indeed children under 18, 2) have no parent or guardian present in the country, and 3) have been victims of “a severe form” of human trafficking. In the overwhelming majority of cases, these teens have legal guardians in America who themselves are here illegally. Yes: 80% of the UACs were settled with other illegal aliens, most often family members. Thus, they are not unaccompanied.
Furthermore, many of them are over 18, which is why you see stories of 20-somethings enrolled in our schools. This farce has grown so absurd that there are now illegal alien girls who come here for elective abortions (mandated by the courts!) and lie about their ages.
More importantly, almost none of these teens are victims of trafficking. In fact, their parents are usually the ones paying for the smuggling. According to existing law, these illegals, together with their parents, should all be deported. The law was designed to protect those legitimately kidnapped against their will and dumped here without any guardian.
We don’t need a new law in order to stop existing practices that corrupt the current law’s language and intent so grotesquely. We don’t need an act of Congress to stop being complicit in a drug- and human-smuggling operation that is being paid for by the taxpayer and that a federal judge called an “absurd and illogical” outcome of “a criminal conspiracy.” Trump should read his own executive order put out just four days after his inauguration (Sec. 11(e)) in which he directed immigration officers to properly interpret the Wilberforce trafficking law. It’s time to execute that order.
The president’s constitutional powers to protect the border
Until individuals are properly admitted into this country, any decision across our boundaries is not only one of immigration but foreign affairs. The president absolutely has inherent Article II powers, over and beyond delegated authority on immigration, to keep out any group of immigrants. This is an issue of diplomacy where the president’s powers are at their pinnacle.
Mike Hethmon, senior counsel for IRLI, a pro-sovereignty immigration law firm, said in an interview with CR that stopping migrants at the border is all presidential power. “Immigration control, as a preemptively federal field of regulation, falls into this area of maximum presidential power. In this case, the threatened mass immigration incident involving the caravan movement evokes the foreign policy aspect of immigration, as the events occur outside U.S. jurisdiction, where even Congress may not invade the areas of ‘exclusive’ presidential power provided in Article II of the Constitution.”
An uninterrupted stream of case law exists speaking to the president’s inherent powers over sovereignty. Drawing upon numerous precedents, in Knauff v. Shaughnessy (1950), the Supreme Court observed, “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation.”
Even with regard to delegated authority on immigration, the court said, “The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”
In Lichter v. United States, the Court observed, “It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. … Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. ‘They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.'”
Nobody can say with a straight face that given the circumstances at our border now and how the people coming across fit neither the text nor the intent of asylum and refugee statutes, a president would somehow be impotent in stopping an invasion via migration. Of course, a president cannot actively use his foreign affairs powers to override immigration law and bring in people who are inadmissible according to statutes. Neither can an unelected judge, even though judges seem to do it every day.
In addition, the president has several other tools in his box. Section 212f of the INA, the same section that authorized the immigration pause (but was ignored by the courts) allows the president to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The same way this applies to denying entry at an airport, it can be done at a land point, and certainly at an illegal point of entry.
The bottom line is that the president is covered both by statute and his own constitutional powers. As the Supreme Court said in Youngstown Sheet & Tube Company v. Sawyer, “When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
While the latest caravan of illegal aliens appears to have disbanded, these illegal crossings happen every day with less fanfare. Secretary of Homeland Security Kirstjen Nielsen admitted yesterday that, after an initial drop in border crossings due to the “Trump effect,” illegal immigration increased dramatically just from the promise of DACA amnesty. She noted, as we observed in our series of articles on the drug crisis, that drug cartels who control the smuggling routes have full confidence that families with children coming over will be allowed to stay and grow their distribution network.
The drug cartels are right. In FY17, 48,672 UACs were apprehended by CBP, while only 3,598 were deported. At the same time, 104,999 family units were apprehended and only 2,605 removed. Imagine how many more were never even interdicted by federal authorities.
This will be a big test for the president to determine whether he is up to the challenge and whether he is committed to making American sovereignty great again.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.