Build That Wall

Unlike many other Trump critics during the 2016 primary and general election seasons, I was never opposed in principle to the idea of a wall along the southern border. Trump’s presentation of the idea was ridiculous, to be sure, as was his suggestion that Mexico would pay for it. But the concept of a wall itself was a good one, for both practical and psychological reasons. There can be no doubt that the border was far from secure during Barack Obama’s tenure in the White House, and though things have improved somewhat since then, much work remains.

But Trump’s spotty record of keeping his promises and staying consistent on the issues, from his professional life to his public political statements, made it seem at the time that his pledge to build a wall would likely be quickly forgotten, should he ever achieve the presidency. There was no evidence that Trump, beneath all his bluster, had the ability to fight both the Democrats and the bipartisan caucus of limitless-immigration advocates in Washington, to the point necessary to change the border situation to any meaningful degree.

That situation has improved, to be sure, more than we had reason to hope. But that improvement is only temporary, unless the Trump administration can find a way to make a large-scale, tangible, and permanent change at the southern border. Something big and beautiful, maybe.

The wall seems to have faded in priority within the Trump administration. Aside from it being politically stupid for the administration to let such a major campaign promise go unfulfilled, it would be a border enforcement measure that future administrations would find next to impossible to reverse. It needn’t stretch along the entire border, either—just an added, highly visible security measure along the most troublesome portions. But it would send a clear message to all those who seek to enter the country illegally: America is a country of law and order.

Immigration Reform: What Comes Next?

Somewhat surprisingly, given the intense focus on immigration enforcement during the campaign, border security has received less attention in recent weeks, so caught up has the administration been in controversies surrounding the firing of James Comey and investigations into Russian collusion, as well as attempting to get the Obamacare replacement bill through Congress. Attempted border crossings are down, while deportations are up since Trump took office, but between Russia, health care, and the search for a new FBI director those announcements have largely come in under the radar.

Which is fine, as far as I’m concerned. The important thing is that results are being delivered, and fewer illegal immigrants are entering and staying in the country. It would be in Trump’s political interest for the average voter to be more aware of those facts, but at least behind the endless self-inflicted controversies of this White House, things are still being accomplished.

What members of Congress should be doing is watching the reports of greater border enforcement, with an eye toward how it will affect future attempts at large-scale immigration reform. The popular conservative mantra has long been to enforce current laws first, before tackling any kind of comprehensive reform—for good reason, as immigration law has for years been implemented laxly. But this argument also had the effect of passing the buck to the executive branch, which constitutionally is the agency in charge of enforcing laws duly passed by Congress. Conservatives thus had little reason to debate immigration reform beyond the border-security components until the country again elected a president willing to execute the law as written.

Time now seems to be running out on that particular excuse. The current U.S. immigration system urgently needs reform, beyond simply an increase in border security and deportations—reform that can only be achieved by an act of Congress. Such reform need not equate to amnesty, the automatic assumption of many on both the Left and Right. But, one way or another, some solution must be found for illegal immigrants currently in the United States, in addition to deportation, because it is simply impossible for the federal government to find and deport every single one of the over 10 million people here without permission. And the system for admitting newcomers into the country legally must also be overhauled and modernized.

The excuse for waiting for border security before acting on these other pressing issues has almost expired. Congressional Republicans would do well to begin formulating plans for what to do when the ball is back in their court.

Grading President Trump's First Fifty Days

Ever since FDR’s famous (or infamous) “First Hundred Days”, filled with the rapid implementation of dozens of new government programs in response to the Great Depression, the first three months in office for a new president has been seen as critical for setting the tone of the rest of his tenure. The Daily Signal has a good recap of the major actions President Trump has taken so far here, as well as comparing them to his promises on the campaign trail.

Overall, if I were a Trump voter who agreed with every one of his campaign promises, I would be enormously pleased with the record so far. As it is, I am, quite frankly, surprised that Trump has shown as much commitment as he has to fulfilling campaign pledges. As I said many times during the campaign, one of my major issues with Trump was that he simply hadn’t given voters any reason to believe that he would actually follow through on many of his more conservative proposals—securing the border, for instance, or pushing to defund Planned Parenthood—based on his history.

But in areas of policy, Trump has actually stayed remarkably consistent. And, he has actually surrounded himself with many good people—Jeff Sessions and Betsy DeVos, to name two—despite the mocking of that particular claim by myself and others during the campaign.

Of course, he’s had some missteps and done things I disagree with, some quite strongly—embracing Obamacare Lite being only the latest example. And his Twitter feed is another matter entirely.

But on the substance, I would have to give Trump a solid B for his first fifty days in office. May his presidency have many more such days, without the missteps (both overblown and real) which have plagued the administration thus far.

Birthright Citizenship Needs To Go

Under the current interpretation of constitutional law, every individual born within the United States is automatically entitled to full U.S. citizenship. This applies equally to the children of American citizens, legal immigrants, and illegal immigrants. If aliens landed in Montana and had a child, that child would presumably be entitled to birthright citizenship, as well.

This is a profoundly bad policy. More importantly, despite liberal arguments to the contrary, birthright citizenship is nowhere mandated in the Constitution. Formally changing the policy would therefore require nothing more than a simple act of Congress.

Arguments that birthright citizenship is constitutionally mandated can be traced back to a single section of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Sounds pretty straightforward, right? If you’re born here, you’re a citizen.

But it is the qualifying phrase, “and subject to the jurisdiction thereof”, that liberals routinely forget about or ignore outright. Merely being born in American territory, according to the Fourteenth Amendment, is not enough. You must also be in compliance with federal law. Illegal immigrants, by definition, are in the country illegally and are therefore in violation of federal immigration law. Hence, their children are not constitutionally required to receive citizenship upon birth.

This is not to say the current regime of granting citizenship to every child of illegal immigrants is unconstitutional. The Fourteenth Amendment sets a mandatory minimum, as it were, for citizenship. Congress, if it wanted to, could pass a law granting full U.S. citizenship to every person on the planet. But just because something is constitutional does not make it good policy.

Furthermore, the Supreme Court has several times held that birthright citizenship, of the kind currently encoded in federal law, is not constitutionally mandated. In 1884, the Supreme Court held in Elk v. Wilkins that Indians could not claim birthright citizenship as the tribes were considered independent political entities not "subject to the jurisdiction" of the United States, thereby requiring additional passage of the Indian Citizenship Act of 1924. In 1898, the Court held in U.S. v. Wong Kim Ark that a child born to immigrant parents in the United States was automatically conferred citizenship under the 14th Amendment, a fact often cited by modern proponents of birthright citizenship—however, what those proponents fail to mention is that the parents in that case were legal immigrants, “subject to the jurisdiction” of both the United States and California, a fact expressly cited in the Court's opinion.

Birthright citizenship was not discussed again by the Supreme Court until 1982, when Justice William Brennan used a single sentence in an opinion footnote to state his belief that birthright citizenship was constitutionally required.

Birthright citizenship as it is currently defined is bad policy, granting blanket U.S. citizenship privileges to thousands of illegal immigrants who have no respect for American institutions or ideals of liberty and limited government. If Congress wants to solve the problem, the time is now. Enough blaming other branches of government for the current mess.

Trump's Next Immigration Steps

As you’ve probably heard by now, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled last night to uphold the decision of a district judge, keeping in place a temporary injunction against enforcing Trump’s immigration ban executive order. The full text of the circuit court’s opinion can be found here.

Amid all the celebrations from Trump opponents and rending of garments from Trump supporters, it bears repeating, once again, that this ruling was not on the merits. In other words, it was only a ruling on whether or not the immigration order could take effect while lawsuits were ongoing. The Trump administration, obviously, wanted the ban to be in place unless it was specifically found to be illegal or unconstitutional. Opponents wanted implementation to be halted until the issue of legality was settled.

As has already been reported, Trump faced four options: appealing to the Supreme Court for a stay of the district judge’s order; appealing for a rehearing by the full Ninth Circuit; return to district court, giving up on the appeal of the injunction and focusing on arguing the merits of the case; or redraft the executive order, addressing some of the legal concerns and rendering the decisions of both the district court judge and the circuit court moot. Trump’s tweet, sent immediately after the ruling was announced, implied that the government would seek to appeal; however, as I write this, word on the street is that the administration will redraft the executive order.

I had intended to discuss the circuit court’s opinion in depth—something I still may do at some later date. However, if the White House is truly about to revise and reissue the executive order, there’s not much hurry, because as I said, that would effectively invalidate the court opinions in question. If the executive order in question no longer existed, the entire legal process would have to start anew.

Presumably, any revised order would explicitly include exemptions for legal U.S. residents and green card holders, as well as more carefully avoiding even the appearance of a Muslim ban. Another lawsuit, no matter what the new order ultimately looks like, is inevitable; the team in the West Wing undoubtedly knows that. And the idea of a “Muslim Ban” is now too firmly rooted in the media and the public consciousness to prevent at least some negative public perception of the new order, whatever it ultimately looks like. But shoring up the administration’s legal weak points will also help the next round of legal defenses immeasurably.

At the same time, the new order can’t be too different; otherwise, Trump’s most ardent supporters will see him as caving on a key tenet of his campaign. The administration has to walk a fine line: draft an order more legally defensible than the last one, but just as pleasing to the president’s base.

If a revised order is in the offing, it will presumably come within the next few days. Then we can start this entire process all over again.

Why Is Everyone So Shocked About The "Muslim Ban"?

I put “Muslim Ban” in quotes because Trump’s executive order Friday, which temporarily barred immigration from seven Middle Eastern countries, is not that. If it were, would Indonesia, with 203 million Muslims, not have been included? What about Pakistan? Afghanistan? Saudi Arabia?

The seven countries on Trump’s list (Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia) are all majority-Muslim, true. So are many other countries around the world not included on the list. And all seven countries are, without a doubt, some of the most dangerous places on Earth, breeding grounds for terrorists. Somalia and Yemen are basically failed states without functioning governments, as is Libya. Everyone not named Gary Johnson knows about the situation in Syria. ISIS also remains strong in Iraq, and Sudan and Iran are hardly places that can be trusted to send only the best and brightest.

The point is that the order was largely a good decision. (Excluding the stupid decisions to implement it on a Friday afternoon, and to initially include green card holders in the order.) Had Trump actually enacted a ban on all Muslim immigration, it would have also been wrong and stupid, although arguably not illegal.

But if he had introduced a ban on Muslim immigration, it wouldn’t have been much if a surprise. Here’s the statement from his campaign in December 2015, discussing that very possibility. And here’s video of Trump reading the statement:

The policy as introduced in Trump’s executive order Friday is actually more similar to a suggestion by Ted Cruz during the campaign, tailoring any potential pause in immigration to specific high-risk countries.

Trump has been talking about banning Muslim immigration for over a year now. It is telling that the media is now in an uproar over a far better and more tailored policy, first promoted by a Trump rival.

Recapping the First Week of the Trump Era

Today marks exactly one week since Donald Trump took the oath of office and officially became the 45^th President of the United States. And what a week it’s been.

He issued executive orders freezing federal hiring, temporarily halting the creation of new regulations, and allowing executive-branch agencies to waive various parts of Obamacare, including the individual mandate.

He reinstated the Mexico City Policy, barring federal funding of groups that perform abortions overseas, including the International Planned Parenthood Federation.

He signed executive orders meant to expedite approval of the Keystone and Dakota Access pipelines, bar federal funding for sanctuary cities, limit the flow of refugees from countries deemed to have a large number of terrorist sympathizers, and formally withdraw from the Trans-Pacific Partnership. And, of course, he signed an order declaring his intent to construct a “contiguous, physical wall” along the southern border.

He also met with business leaders and the heads of labor unions, talked with foreign leaders, announced plans to meet with British Prime Minister Theresa May later today, and got into a Twitter spat with the Mexican President that led to the latter cancelling his planned trip to America next month.

Obviously, that was a bad way to end the week, and will probably come back to bite Trump—and all of us—later on. But overall, the first week went much better than I or many other critics of Trump during the campaign expected. He gave social, economic, and national security conservatives alike some real victories, of the sort we haven’t seen in years. They won’t be secure, lasting victories until Congress backs up the sentiment with the force of law, but change is already beginning. I was certain Trump, once in office, would not bring real change and would govern substantively no different from Hillary Clinton, based on his past record. If this first week is any indication, I was wrong.

May Week One be only the beginning.

This Election Wouldn't Be So Important If We Just Followed The Constitution

The strongest argument Trump apologists can muster for their man has consistently been, “At least he’s not Hillary!” Similarly, one of the strongest arguments in favor of Clinton has consistently been, “At least she’s not Donald Trump!”

Both sides say that this presidential election could be one of the most consequential in American history, and with the ideological balance of the Supreme Court, the expansion of the regulatory and welfare state, and the potential continuation of Obama-style liberal policies and executive actions all at stake, both sides have a point.

But the real question—and yet one not being asked—should be, “Why is this election so important?” Why is the partisan affiliation of the President, or his ideological background, of such vital importance? Why so much attention upon the filling of a single office?

No President, Democrat or Republican, should exert the sort of power and influence over the direction of the country that the media and popular opinion now attribute to the office. The simple fact is that no single presidential election should be so enormously consequential in the life of the nation.

The Constitution, as has been endlessly repeated during the Age of Obama, limits presidential power. Congress is designed to be most responsive to the people, and is therefore delegated most direct authority over domestic concerns. The president, while serving as the sole face of America in foreign affairs and holding significant unilateral power in matters of national security, must still consult with Congress on the direction of the nation.

On everything from health care to immigration, many of the most popular debate topics are framed as if the President has singular authority: "What would you do to fix _____?" But the president's primary responsibility is to sign or veto bills passed by Congress, and enforce those which do become law. Apart from his role as Commander in Chief, and immediate issues of national security, there is little he can do unilaterally, particularly in domestic affairs. The President was intended to be the enforcer of the law, not its author.

Nor, as Barack Obama needs to constantly be told, is there a clause in the Constitution which allows a president to assume monarchical powers should Congress fail to act on any given problem. He can encourage them to do so, but he cannot take binding action on his own. Many of the questions at these presidential debates seem to either forget or ignore this basic principle of American government—at the end of the day, while important, a single presidential election shouldn't be so impactful. It was only in the past century—a trend begun by Wilson, expanded by FDR, and brought into its own by Obama—that presidents began to drastically exceed their mandates.

Donald Trump has no constitutional power to single-handedly build a wall and make Mexico pay for it. Hillary Clinton has no power to implement a public option for health insurance or “make college more affordable.” But now, thanks to Obama and the presidents who came before, they think they do, and will attempt to make it so.

Policy Spotlight: Immigration

It’s fair to say that immigration has become one of the central issues for debate this election, and while I heavily dispute the notion that Donald Trump is the sole or primary reason for that debate, as he and many of his supporters would like to believe (such a key issue had enormous salience in politics long before Trump came along and suddenly noticed the issue, which is the reason he did so in the first place), it has became a mainstay of discussion regardless.

Which is both good and bad, from the perspective of those seeking enforcement and reform of the national immigration system. Good, because the issue is at least being discussed, and becoming more acceptable for discussion—and bad because despite all the talk, much of what is currently being proposed is incoherent, contradictory, or simply bad policy.

A strong, coherent immigration policy would be focused on three distinct stages: enforcement & reform, verification, and finally normalization. In the first stage, the border would be strictly secured, through a combination of increased border patrols, a physical barrier where appropriate (whether a wall or fence, take your pick), and various technological measures such as drones to deter additional illegal immigration. Measures would need to be taken to deter the popular use of tunnels by drug smugglers and human traffickers, as well, and the Coast Guard would also need to be strengthened to protect against attempted entries by sea. Visa overstays, another serious problem, must be cracked down on as well.

Beyond simple enforcement of existing immigration law, however, new security precautions must be put into place. First and foremost, sanctuary cities are a serious threat to the safety of millions of Americans, and steps must be taken to stop the policy nationwide. Use of E-Verify by businesses to check immigration status during the hiring process should be made mandatory. Immigration from certain suspect countries determined to have a high level of terrorist activity should be reduced or halted altogether, a need demonstrated by the fact that most of the recent perpetrators of terrorist attacks in the United States originated in a handful of countries in which Islamic radicalism is common (however, this is entirely different from attempting to ban members of an entire religion from entering the country). And legal immigration as a whole should be reduced to better match historical levels, allowing new and recent immigrants a chance to more fully assimilate.

There are several more steps that must be taken for the federal government to fully regain control of immigration once more, but once these are achieved Stage Two should come into play—verification. All of the enforcement measures I outlined above, as well as any changes to additional federal law, must be independently verified as actually being implemented, with results readily accessible by the public. For too long, existing enforcement mechanisms for immigration have been ignored, even more so in recent years with President Obama’s unilateral and publicized—indeed widely praised—decision to no longer execute immigration law still on the books. Before any other change is made to national immigration policy, there must be concrete evidence that this carefree attitude has changed.

Finally, and only after both Congress and the public have been convinced that the law is in fact being faithfully executed, there may be a healthy and honest debate about the status of those still in the country illegally, who have not been deported or left voluntarily. Whether that ultimate status would include full citizenship or amnesty, a form of legalization, or something else would be open for debate at that time. But it must be the final step in reforming the national immigration system. There can be no comprehensive bill as long as there are still flaws in border security and immigration enforcement, whether by statute or simple government inaction.

Of course, Hillary Clinton promises to continue Barack Obama’s policy of selectively enforcing the law, while Trump changes his immigration proposals by the week, and sometimes by the day. The list of disappointments and missed opportunities in 2016 also grows by the day.

Trump Embraces Amnesty

The big political story this morning—and really this week—has been Donald Trump’s turnaround on immigration. By now there are so many pieces out there on this specific topic that there really isn’t much to add (one of the better articles can be found here). But I do want to note that this whole incident perfectly sums up what I said yesterday, which I wrote before this latest Trump immigration story reached the mainstream outlets.

Sure, Trump is still taking pains to say the new proposal really isn’t a flip-flop at all, and that it’s nothing like amnesty. But comparing what he was saying during the primary and what he says now, the shift in both tone and substance is notable. What a change from “they’re murderers, they’re rapists”, to “take a person that has been here for 15 or 20 years and throw them and the family out, it's so tough.”

Not even Trump’s staunchest critics would have guessed that the man who made deportation his signature issue would be saying things like this: “No citizenship… [but] they pay back taxes…there’s no amnesty, but we work with them.” Critics said all along that his plan was merely touchback amnesty; now, he’s eliminated the touchback part altogether and gone full Gang of Eight. Regardless of how much he says “no amnesty”, what he is now proposing is exactly that. Pay back taxes, learn English, and then illegal immigrants are given legal status—it’s what we’ve heard for years, from the very politicians Trump claims to despise, and what his followers have accurately labeled as amnesty from the beginning. He might be able to shoot someone and not lose votes, but can he talk about immigration like Jeb Bush and not lose his base?

The only question now is whether those same followers will “define down” amnesty in response, i.e., “If Trump says it, it can’t be amnesty!” At this point, after everything else Trump supporters have done to make fools of themselves, I can’t say I would be surprised, although for the moment, a few—like Ann Coulter—still seem to have a shred of intellectual honesty left.