January 30, 2020

Immigration Restrictions

Editor's note: We couldn’t be more proud of one of our teammates, Isaac Rose-Berman, who penned his first op-ed this week in USA Today: “How college students can bridge American divides: 'Study abroad' in Alabama or New York.” Please give it a read, and share far and wide!

On Monday, “a divided Supreme Court granted the Trump administration’s request for permission to enforce a rule known as the ‘public charge’ rule, governing the admission of immigrants to the United States… [the rule] bans noncitizens from receiving a green card if the government believes that they are likely to become a ‘public charge’ – that is, reliant on government assistance…

“Justice Neil Gorsuch filed a concurring opinion that was joined by Justice Clarence Thomas. Gorsuch focused primarily on the common practice, illustrated in this case, of district courts issuing what are known as ‘nationwide injunctions’ – relief that goes beyond the parties to a particular dispute and bars the government from enforcing a law or regulation against anyone in the country.” SCOTUSblog

Last Thursday, “President Donald Trump’s administration rolled out a new rule… that aims to limit ‘birth tourism’ by women who enter the United States on tourist visas with the intention of obtaining citizenship for their babies born on American soil.” Reuters

See our prior coverage of the Public Charge rule here. The Flip Side

See past issues

From the Left

The left opposes both the public charge rule and the additional hurdles for travelers suspected of pregnancy.

“[The rule will] exclude a large number of immigrants seeking entry from abroad, who face the daunting task of proving total self-sufficiency, not just now but indefinitely. This extraordinary burden might be legally tolerable if Congress had demanded it. But Congress did no such thing. Instead, the Senate refused to implement a version of the new rule as recently as 2013. But Trump’s Department of Homeland Security would not let a little thing like congressional inaction stand in the way of its nativist goals…

“The 5–4 decision is both a humanitarian catastrophe and an act of rank hypocrisy: The same conservative justices who rail against executive lawmaking by federal bureaucrats approved a policy written by bureaucrats that radically alters the laws passed by Congress.”
Mark Joseph Stern, Slate

“Under the new rules, even legal immigrants who haven't yet received any public assistance but are determined to be ‘more likely than not’ to do so at some point in their lifetimes could be denied entry into the U.S. or denied permission to remain as permanent residents. This gives enormous discretion to officials in determining who is a ‘public charge.’ One Trump administration guidance includes any immigrant whose current family income is below 125 percent of the federal poverty level. Of course, such a criterion would result in [racially] disparate impacts, as many immigrants of color come from nations with low wage levels…

“Nothing in the Supreme Court's decision addresses the merits or the morality of Trump's immigration policy. This decision was entirely a matter of legal jurisdiction, as the conservative justices saw it. They derided the idea of district courts imposing nationwide injunctions on Trump administration policy… ‘What in this gamesmanship and chaos can we be proud of?’ Gorsuch asked… [But] true chaos is caused not by the technicalities of judicial review but by an administration that is attempting to radically disrupt determinations that have guided immigration policy for more than a century.”
Sophia Tesfaye, Salon

Some, however, argue that the rule “is not, contrary to many comments, a drastic change in immigration policy. Like much that is Trumpian, the new rules, and the Supreme Court order allowing them to go forward, build logically on the last few decades of the American political conversation on immigration, race, and class…

“The ‘public charge’ exclusion in immigration law goes back to the middle of the nineteenth century… The immediate precursor of the Trump Administration rule is the Personal Responsibility and Work Opportunity Reconciliation Act, the welfare-reform law signed by Bill Clinton, in 1996… Trump’s spin on these long-standing policies and fears takes them to an entirely new level of hatred and cruelty. But, to reverse them, we will have to do much more than return to the way things were before Trumpism.”
Masha Gessen, New Yorker

Regarding Gorsuch’s opinion, “It wasn’t so long ago that liberals tended to rail against [nationwide] injunctions as conservatives eagerly sought them from federal district judges… Now the shoe is often on the other foot. The Trump administration announces a policy that is anathema to Democrats, a liberal litigant files a lawsuit, and a judge somewhere in the country issues a nationwide injunction blocking that policy…

“It’s working in Democrats’ favor — for now. But in the long term, nationwide injunctions are likely to be a much bigger thorn in the side of Democratic presidents than they are for Republican presidents. The Supreme Court, after all, is controlled by Republicans. So liberal nationwide injunctions tend to be wiped away quickly, while conservative injunctions may last forever… Now is the time for the court’s liberals to form an alliance with Gorsuch.”
Ian Millhiser, Vox

Finally, regarding the rule targeting ‘birth tourism,’ “The administration hasn’t clarified how a consular officer would have any ‘reason to believe’ that an applicant will imminently give birth. Since they can’t ask outright, they might infer based on looks alone, which has no basis in immigration law, said Ur Jaddou, former chief counsel at US Citizenship and Immigration Services and the director of the watchdog group DHS Watch…

“More broadly, the policy could impose new hurdles on anyone of childbearing age. Since some B visas are valid for up to 10 years, a consular officer could theoretically weigh whether someone is likely to give birth over the course of the next decade. A 30-year-old, married applicant could therefore suddenly face more scrutiny, without any means of recourse or appeal… Imposing these kinds of disproportionate burdens runs afoul of the US Constitution, which protects against sex discrimination. But since these consular interviews involve noncitizens and are taking place on foreign soil, the US Constitution doesn’t protect them.”
Anna North, Nicole Narea, and Alex Ward, Vox

Regarding Pelosi, “[her] talents have always lain in the less glamorous, less public side of politics: she is good at whipping up votes in her caucus and she is good at disciplining dissenters. She is good at offering incentives and punishments to get Democratic members of Congress to do what she wants them to do… To rip up the speech on television was a bit of theatricality, sure – a ploy designed to get attention. It also worked. The day after Trump made a long speech full of misinformation that tried to make a case for his re-election, no one is talking about him. Instead we are talking about the speaker of the House. That, too, is a skill, one that Pelosi seems to be honing.”
Moira Donegan, The Guardian

Others argue that “Biden was almost the only one on the stage who talked like a normal person. There was a point near the end of the debate when he was talking about getting men involved in stopping domestic violence and he said that we need to keep ‘punching’ at it… I knew that the twitterati and the analysts would tut tut. Ol’ Joe is just out of touch! He doesn’t know you can’t use words like that. Meanwhile, every non-political junkie watching the debate thought there was nothing wrong with this. Biden was just using ordinary language, not worrying too much if it was fully approved by the woke brigade.”
Kevin Drum, Mother Jones

From the Right

The right is generally supportive of both the public charge rule and the restrictions on birth tourism.

From the Right

The right is generally supportive of both the public charge rule and the restrictions on birth tourism.

Dated But Relevant: The public charge rule “is a long-standing principle of U.S. immigration law, first implemented at the federal level in 1882. It is common sense — and a smart choice in the best interests of the country as a whole — to try to ensure that new, legal immigrants to our country are self-sufficient individuals who will be a net plus for our economy, rather than a drag on expensive medical, housing, welfare, and other public assistance programs paid for by the American taxpayer at both the state and federal level…

“The administration’s new rules simply define the public charge requirement to reflect today’s system of government benefits.”
Hans von Spakovsky and David Inserra, Heritage Foundation

Nevertheless, “We ought not overstate the problem or pretend that immigrants rather than the native-born drive the costs of these social programs… It’s true that immigrants are more likely to be poor. But among poor people in the U.S., it turns out that immigrants aren’t the drain on public services that the administration is making them out to be… [According to a study by the Cato Institute] the native-born make use of means-tested welfare and entitlement programs at significantly higher rates than their foreign-born counterparts…

“[Furthermore] the assumption that people who arrive poor will stay that way is ahistorical. Immigrants are self-selecting. The poorest of the poor can’t afford the trip, and the ones who do come tend to be more motivated and less risk-averse than nonimmigrants. Class-warfare liberals have been insisting in recent years that social mobility in [America] is now a ‘myth.’ I’ll believe that when people no longer want to come here.”
Jason L. Riley, Wall Street Journal

The decision’s “real import is the way Justice Neil Gorsuch puts a torch to the proliferation of universal injunctions by the lower courts. His concurrence, joined by Justice Clarence Thomas, is a much-needed rebuke to what he calls ‘the increasingly common practice of trial courts ordering relief that transcends the cases before them’…

“Justice Gorsuch doesn’t point out, as he might have, that these [injunctions] have become rife in the last three years as judges seek to block Trump policy even at the risk of being overturned on appeal. But he lays out the many legal, and practical, problems with rule-by-injunction. ‘By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions,’ he writes. They encourage forum shopping as plaintiffs file suit in several of the 94 federal district courts and 12 appellate courts to stop a policy. ‘A single loss and the policy goes on ice,’ he says. ‘What’s in this gamesmanship and chaos can we be proud of?’”
Editorial Board, Wall Street Journal

Regarding birth tourism, “[The new rule] addresses a real, if hard to quantify, problem. Some companies openly advertise birth-tourism services abroad, and there have been numerous cases in which providers of these services have resorted to fraud and other illegal activities. The Center for Immigration Studies estimates births to women on tourist visas at 33,000 annually…

“The rule still allows pregnant women to come for the purpose of giving birth in U.S. hospitals for medical reasons, so long as they are doing so because of the quality of care and proximity to their home countries — and didn’t, for example, select the U.S. over another destination because doing so would win the child citizenship… Like much of our immigration policy, it depends on consular officers’ asking hard questions and judging the truthfulness of the replies… But as far as the rule goes, it’s entirely correct: If the primary purpose of someone’s visit is to give birth in the U.S. and gain citizenship for the child, that person should not be given a B visa.”
The Editors, National Review

“Consular officers have every right to ask about medical conditions from both males and females. For instance, they have a duty to try to determine if someone who wants to come to the United States is sick. They ask about financial status. They ask about criminal intent. And they have the right to ask about a pregnancy when it’s suspected someone is using our visa program to cheat our system. No foreign citizen has an unrestricted right to come here.”
Brandon Judd, Fox News

Bat spit coffee is a hit with Madagascar consumers.
Reuters“Perhaps we’re approaching this from the wrong direction. Stopping pregnant foreign women from traveling to the United States to give birth for these purposes, in addition to being difficult and complicated, is predicated on the understanding that if she succeeds and delivers her baby here, the child is automatically a citizen. But we already make exceptions to the federal law covering these situations. For example, children born to diplomats working in the United States are not granted automatic citizenship… what if we attempt to expand the interpretation of that [exception] to include tourists and business travelers?”
Jazz Shaw, Hot Air

Others note, “I’d hate to be a Democratic member of Congress trying to convince Joe Sixpack that this is a whole new ballgame. The transcript shows Trump being Trump and Ukrainian president Volodymyr Zelensky trying to ingratiate himself with the big dog by, for instance, mentioning that he stays at Trump hotels. Trump’s conversation is typically scattershot, wandering all over the field, leaving a reasonable listener puzzled about what the takeaways are supposed to be…

“I think Joe Sixpack’s response is going to be a hearty shrug. After all that has emerged about Trump so far, his approval rating is closely tracking Obama’s approval at the same point in his presidency. To get Mr. Sixpack’s attention you are going to have to do better than this.”
Kyle Smith, National Review

President Trump should be happy. As much as Warren is articulate, obviously intelligent, and energetically supported by Democrats, she would also be far easier to defeat than Joe Biden… Considering Trump's economy, the president is well placed to defeat Warren.”
Tom Rogan, Washington Examiner

A libertarian's take

“While running for president in 2000, George W. Bush derided ‘nation building’ and said American foreign policy should be ‘humble’ rather than ‘arrogant.’ As president, Bush brought us the disastrous wars in Afghanistan and Iraq… While running for president in 2007, Barack Obama rejected the idea that the president has the authority to wage war without congressional authorization whenever he thinks it is in the national interest… As president, Obama did that very thing in Libya… A few years before his 2016 presidential campaign, Donald Trump said the U.S. should withdraw immediately from Afghanistan… As president, he sent more troops to Afghanistan…

“Three men with little or no foreign policy experience entered an office where they were surrounded by experts, and they quickly shed their initial skepticism of military intervention… we should worry about a president with little knowledge of the world whose military decisions are driven by anger or domestic political considerations. But it's not clear to me that such a president poses a bigger danger than the experts who have been disastrously wrong more times than we can count.”
Jacob Sullum, Reason

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