Donald Trump has ordered Central American refugees to get off America’s “lawn.”
On Thursday, the president reiterated his desire to deport asylum seekers without providing them access to the American legal system — a proposal that would violate American law, multiple binding international treaties, and the U.S. Constitution.
“Congress must pass smart, fast and reasonable Immigration Laws now,” the president tweeted on July 5, when Congress was not in session. “Law Enforcement at the Border is doing a great job, but the laws they are forced to work with are insane. When people, with or without children, enter our Country, they must be told to leave without our … Country being forced to endure a long and costly trial. Tell the people ‘OUT,’ and they must leave, just as they would if they were standing on your front lawn. Hiring thousands of ‘judges’ does not work and is not acceptable - only Country in the World that does this!”
Trump’s remarks come as his White House struggles to resolve its (self-engineered) crisis of border-enforcement policy. The administration would like to criminally prosecute all migrants who commit the misdemeanor offense of crossing the U.S. border illegally — including those fleeing violence or persecution in their home countries, who have a right under U.S. law to cross our border and then turn themselves into immigration authorities for the purpose of registering an asylum claim.
But many asylum seekers come to the United States with children in tow — and federal law forbids the government from imprisoning migrant children for longer than 20 days. Thus, the administration adopted its infamous policy of separating migrant families — sending migrant parents to jail, while placing their children in (supposedly) less restrictive forms of confinement, or else with sponsor families. This led to our government willfully traumatizing hundreds of small children; which led to a broad, bipartisan backlash; which led Trump to sign an executive order instructing the federal government to jail migrant families together (in defiance of judicial rulings barring that practice).
There are practical ways of resolving the administration’s family-detention dilemma. Officially, the administration’s insistence on imprisoning asylum seekers is grounded in the belief that migrants who are allowed to await court proceedings outside of federal detention will simply abscond into the interior of the country (a.k.a. “catch and release”). But that worry could be resolved by providing asylum seekers with ankle monitors. The Department of Homeland Security has used such monitors to track a small portion of asylum seekers for two years now; and migrants with ankle bracelets have complied with court appearances 99.6 percent of the time. Outfitting all asylum seekers with ankle monitors — instead of detaining them — would save the federal government millions of dollars, while also resolving the humanitarian problems posed by family detention.
But if the Trump administration finds ankle monitors insufficiently cruel, it could at least throw its support behind expanding the ranks of immigration judges. If the government could rapidly process asylum claims, it would not have to detain families for months on end. Currently, the U.S. has 334 immigration judges; experts believe that hiring an additional 364 such judges would allow the courts to get through the large backlog of pending deportation cases. To that end, Texas senator Ted Cruz has put forward a bill that would bring the total number of immigration judges up to 750.
But Trump has denounced all viable solutions to the White House’s problem. The White House’s aversion to ankle monitors isn’t hard to understand — the administration has signaled that it believes treating migrants cruelly is an effective means of deterring future migrants. By contrast, the president’s loud opposition to hiring more immigration judges is simply baffling.
The United States already deports many undocumented immigrants without allowing them to appear before an immigration judge. In fact, expedited removals — which is to say, removal orders issued to individuals who have been ordered to leave the U.S. previously — account for the vast majority of deportations.
But both U.S. and international law prohibit the expedited removal of asylum seekers. And it’s unlikely that there are 50 votes in the U.S. Senate for repealing that law and breaking the relevant treaties — let alone, the 60 necessary for passage. Meanwhile, Trump’s broader proposal to deny migrants all forms of due process — and to simply eject them from the country like rowdy teens on a front lawn — would require a constitutional amendment to enact.
Given these facts, it’s hard to fathom why the president wouldn’t want to increase the pace of deportations by hiring more immigration judges — a measure that could ostensibly pass Congress if he put his weight behind it, and provided some minor concessions to Democrats.
And yet, this irrational intransigence is of a piece with Trump’s broader approach to immigration policy. The president has repeatedly refused to accept funding for his border wall because it wasn’t paired with steep reductions to legal immigration — which only 38 Senate Republicans support.