There is a difference between shutting down the border for commerce and suspending all immigration at our border.
The good news is that the media are finally admitting that the president has the authority to close the border. The bad news is that they are obfuscating the distinction between shutting off the entire border for commerce and suspending immigration requests at the border. The Trump administration would be wise to push back against it immediately and clarify this distinction.
The media is in full meltdown mode over Trump’s threat to “shut down” the border, as they predict doom and gloom for our economy, loss of jobs, and loss of revenue. We might even face an avocado shortage, according to the New York Times! Imagine that.
Never mind that the cost of one year’s border flow could add up to at least $150 billion for taxpayers.
Never mind the fact that Border Patrol is completely shut down and is basically a conveyor belt to complete the criminal conspiracy of evil smugglers rather than deter it.
Never mind the countless migrants are coming in with dangerous diseases because, according to CBP Commissioner Kevin McAleenan. large numbers of them “may have never seen a doctor, received immunizations, or lived in sanitary conditions.”
Never mind the fact that our schools will be flooded with unassimilable illegal immigrants creating fiscal and cultural problems, as well as a breeding ground for transnational gang recruitment, when the laws on the books were designed to protect Americans from this very outcome.
Never mind that while the status quo continues, the worst criminal alien murderers and rapists who were deported are now re-enering through the frontier without any agents to challenge them.
But how ’bout those avocados?!
The media is missing the point about the president’s inherent and delegated authority to deny entry at the border and the most prudent way to use it. Through statute and case law, the president’s 212(f) authority overrides all other immigration processes, including asylum requests, but it’s important to remember that it’s not an all-or-nothing proposition. It’s not an on-or-off circuit breaker on the operation of our border. There are modules on that switch that the president can engage to strategically address the current situation.
Let’s again review the language of the relevant statute, 8 U.S.C. §1182(f):
Whenever the President 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, he may by proclamation, and for such period as he shall deem necessary, 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. (Emphasis added.)
Even if the rest of the general operating statutes were broken (they are not), this statute alone supplies the president with all the authority he needs to deal with such an urgent and devastating crisis, at least in the relative short run. If members of Congress were to get together and craft a new law with the intent of giving the president more power to shut down what is happening today, they could not conceivably have written anything strong than this existing law, which has been in place, in some form, since 1893, particularly to keep out those with diseases.
The law is saying that the president can shut down all migration or any type of migration, while leaving others in place. He can shut down migration at our land border and airports or one without the other. He can shut down immigration requests at the border or non-immigration requests, such as admission for commerce or travel on temporary visas or border-crossing passes. He can direct the requests to some parts of the border. He can restrict them to applying for asylum outside our country or at any other specific location. He may do so for one week, one month, or one year.
Any limitation on this power stemming from political disagreement is a policy question, not a legal question. It’s hard to deny that the president is justified in determining this mass migration event is detrimental to our interests (as well as to the health of many migrants), but if Democrats disagree with that decision, they have the power of the purse in Congress, and they have the ballot box to check him. Trump will stand for re-election; a federal judge, such as Jon Tigar, will not. As Justice Clarence Thomas said in Trump v. Hawaii, “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. … Nor could it, since the President has inherent authority to exclude aliens from the country.”
The Supreme Court already ruled on this in 1993, and Chief Justice John Roberts made it clear that there are no limits. “By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts in the majority opinion in Trump v. Hawaii. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. (Emphasis added.)
Remember, Roberts wrote this in the context of an order by the president on visas from certain countries when there were clearly no new facts on the ground making this particular order urgent at that time and in that way. What is going on at our land border today, on the other hand, is an emergency, unprecedented and uncharted in all respects, and it’s getting worse by the day.
So, case closed. If the administration is going to allow any district judge to engage in civil disobedience against sovereignty, law, statute, the Constitution, rules of standing, and even fresh Supreme Court case law, then we have no country. Now is the time for the president to make his stand.
While there is some utility to the president threatening to shut off commerce for a day or two to leverage both the Mexican government and Congress into action, it would be better policy and savvier politics to simply suspend all immigration requests at the border while leaving open non-immigrant travel with proper documentation.
So, what happens if they show up anyway? Either send them back across the Rio Grande River or start holding the newest wave in tent cities while allowing them to voluntarily depart. But either way, we should be closed for business and not allow entry into our country and certainly not process any immigration requests until the crisis has abated.
Some might fear that this order would shut off claims for legitimate asylees as well, but the reality is that under the status quo, the system is already shut down and legitimate asylees cannot obtain real asylum status because of the mass migration and fraud. They can hitch a ride with catch-and-release but are stuck without any path to permanent status. Any commonsense balancing of equities both for the American people and for legitimate asylees would be to proclaim a temporary suspension of all immigration requests at land borders and route them to embassies. Once this is done for a few days, those further down in Mexico and Central America will stop coming, as was the case in 1989.
The only people who will lose from this in the long run are the evil Mexican cartels that exploit women and children as commodities and earn billions of dollars to poison us with more fentanyl and meth and bring in more criminals and gang members to distribute the poison.
And you know what else? We can keep the ports open to commerce, have our secure borders, and eat our avocados too.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.