President Trump has full constitutional power to stop the border invasion – even without Congress

· October 17, 2018  
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Donald Trump
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Just as President Reagan is remembered for ending the Cold War, President Trump can be remembered as the one who ended the war on our sovereignty. Will he rise to the occasion?

Here’s the stone-cold truth about our border: We could construct a border wall as high as the stratosphere, and it won’t help much if we continue our self-destructing policies of allowing bogus asylees to come through our front door and legitimizing the opinions of sanctuary judges who “make denizens of aliens.”

President Trump publicly warned the governments of Honduras, El Salvador, and Guatemala that if they don’t take steps to stop the latest caravan of bogus asylum invaders, he will cut off aid to the countries. While this is a good first step, it won’t deter the invasion unless we stop admitting the invaders and implementing catch-and-release under orders from illegitimate court rulings, as we did with the previous caravan and countless tens of thousands of others coming in with less pomp. And that would hold true even with a border wall. They just come to our points of entry, surrender themselves, get released into our communities, and never show up to their hearings until and unless they wind up committing crimes.

Moreover, the caravan is already in Guatemala and headed for Mexico. Thus, the Honduran diplomacy is moot at this point. And this is much bigger than one caravan. We must first dissect what is actually happening at our border.

This is nothing short of an invasion

Earlier this week, KTAR news in Phoenix, Arizona, sat down with ICE’s Phoenix field director, Henry Lucero. What he revealed should disturb all of us:

  • Only two percent of family units released from custody are ever deported. And there are a lot of families. In fiscal year 2017, roughly 13,000 came through the Yuma Sector. This year’s final numbers will likely show double that number. Freeze-frame right there. This is the magnet. Until this policy stops, the border invasion will not cease.
  • 85 percent of the recent families are from Guatemala, and they ask for asylum while surrendering themselves to border agents. They are not even attempting to smuggle themselves in between the points of entry. Thus, a wall will not help if we continue to allow this because they just come to the points of entry. As Lucero said, “On the news in Guatemala they are saying that you can get a work permit if you’re in a family, if you’re coming with your child, and that you’re going to be released.”
  • Border agents interviewed by KTAR said that resources designed to protect our national security are now being used to aid and treat illegal aliens in distress. This, in a nutshell, is why the gang and drug crisis spiked to unprecedented levels beginning with the Central American migration in 2014. Officials said that 95 percent of those caught in Arizona go to the East Coast, which explains why places like Long Island are the hardest hit from the gang and drug crises.

Thus, it all boils down to bogus asylum and catch-and-release. Either Trump ends those, or everything else is just talk. While Trump is right to ask Congress to step in, we’ve noted before that our statute is already clear that these people do not qualify as asylees and that the unaccompanied teenagers do not qualify as refugees.

With this background in mind, it’s easy to understand why Lindsey Grahmanesty’s idea of trading amnesty for a border wall is so counterintuitive. We only have this border invasion because of the magnet of amnesty, and the magnet of amnesty allows them to come to the entry points, demand asylum, sue for rights, and never get deported. A wall only helps a country that has a strong spirit but a weak frontier; it doesn’t help a weak political system that willingly commits national suicide.

Anyone who tells you that the president doesn’t have the authority to exclude anyone for any reason doesn’t deserve to live in a sovereign nation. Sovereignty trumps everything. There is nothing in our statutes that forces the president to admit anyone he feels is a problem. In fact, as we’ve noted before, he has inherent executive powers from Article II, as well as delegated authority from Congress under existing law, to stop taking in immigrants at the border or through visas for as much time as he deems necessary.

Here’s a quick review.

Inherent executive authority

While Congress controls immigration once immigrants are legally admitted to our country and can also exclude anyone from admission, the president shares concurrent jurisdiction on exclusions. He can’t deport anyone he wants to without an authorizing statue, but he can exclude anyone up front. As the Supreme Court said in a landmark 1950 case, “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.” This is why for the first 100 years of our country, immigration was entirely controlled by diplomatic correspondence through the State Department. The president was clearly using this authority when communicating with the leader of the country of origin of this caravan.

Trump can simply shut the door and demand that any legitimate asylum claims be processed through our 10 or so consulates in Mexico.

Finally, the president needs to threaten not just Honduras, Guatemala, and El Salvador, but Mexico with diplomatic sanctions. As Jessica Vaughan, director of policy studies at the Center for Immigration Studies, told me in email, “The president should be leaning on Mexico and the sending nations that their facilitation of this problem is immoral, shameful, and will adversely affect our bilateral relationship.”

“He should consider visa sanctions if they are not cooperative in arranging the swift return of those apprehended. He should suspend certain foreign aid until we gain their cooperation. There almost certainly are other forms of leverage that will get their attention.”

One such point of leverage would be NAFTA negotiations. The top issue should not be trade, but immigration. Mexico badly wants a renewal, and having it agree to process asylum claims in our consulates rather than sending them to our border would go a long way.

Along with threatening to cut off aid, he should fund a massive Spanish-language media campaign in these countries to make it clear they can never obtain legal status unless they apply through a consulate.

Delegated authority from Congress

INA 212(f) allows the president, whenever he finds that “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” to “suspend” all forms of immigration “for such period as he shall deem necessary.” INA 215(a)(1) grants the president an almost equal level of authority to subject entry of all aliens entering or departing to “such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” If demanding that all immigrants enter legally or apply for asylum in a safe and controlled environment at a consulate rather than at a border controlled by some of the most dangerous people in the world is not a “reasonable rule,” I’m not sure what is.

In addition, given that this is not an ordinary case of immigration or a trickle of asylum seekers, but rather a mass influx, the attorney general can use 8 U.S.C. § 1103(a)(10) to deputize local law enforcement bodies at the border that wish to participate to engage in the police powers of federal immigration officers. This section of the law states that when there’s an “imminent mass influx of aliens arriving off the coast of the United States, or near a land border,” the attorney general may “authorize any State or local law enforcement officer” to perform such duties. This will help with the manpower and the national security component of the issue.

The bottom line is that we need to repel the invasion, not manage it. Why are border agents automatically handing over these people to ICE to be processed? Jessica Vaughan told me she is concerned this is depleting ICE’s resources to address interior enforcement when Customs and Border Protection should be leading at the border. “It’s time for CBP to step up and assume some more responsibility for addressing this crisis,” wrote Vaughan in an email. “So far, they have been just handing over the problem to ICE, USCIS, and the immigration courts, as if it’s not CBP’s problem. That has depleted and diverted the resources for those other critical agencies, which have other responsibilities in the interior. The president should direct CBP – the border protection agency — to assume responsibility for managing the swift processing of these cases, in cooperation with the other agencies of course.”

This is why Trump was elected. Period  

This is Trump’s legacy at stake. This is his time in history. He can be the one to stop the border invasion. The minute he forces a national debate over whether we are a sovereign nation, he gains more leverage. The minute he threatens to veto the next budget bill unless it makes changes to sanctuary cities and asylum policies, the tables will be turned. And the minute he actually uses his inherent executive and delegated authority to shut this down temporarily without Congress, he has much more leverage to push long-term reforms as well as deterring Central Americans.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.