Immigration Policy under Trump 2.0 (Part II)

Ending Birthright Citizenship

Mass deportations will be most effective in curbing future illegal immigration if they are combined with other policies. Above all, this means ending birthright citizenship for the children of immigrants and, with it, one of the strongest pull factors incentivizing legal and illegal immigration alike.

To this effect, Trump issued an executive order on his first day back in office ending the long-standing constitutional principle that all children born in the U.S. are granted citizenship. He instructed federal agencies to require that any child born in the U.S. have at least one parent who is a lawful permanent resident or citizen before they can be issued a passport or Social Security number. If pushed through the courts, where it is currently being challenged, this will bring the U.S. into line with most other common law jurisdictions like the UK, which ditched birthright citizenship as an anachronism in 1983, as well as with the civil law jurisdictions of continental Europe.

To succeed, this policy will require a reinterpretation of the 14th Amendment of the Constitution, Section One of which states: “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.” The Amendment was ratified in 1868 and the Supreme Court affirmed birthright citizenship for the children of immigrants 30 years later in US vs Wong Kim Ark. In that seminal case, the Court ruled in favor of a man born in San Francisco of Chinese parents and held that birthright citizenship applied to everyone born in the country regardless of background.

The legal dispute centered on the interpretation of the phrase “subject to the jurisdiction thereof”. The majority interpreted this phrase as being required to obey U.S. law, which is an obligation that applies to everyone resident here other than those covered by diplomatic immunity. The dissenters, however, interpreted it to mean those “not subject to any foreign power”. This would exclude parents and their children who owed allegiance to another country. On that view, a child born in the United States to illegal alien parents who acquired the citizenship of their parents’ country through jus sanguinis (through family descent) would not also acquire U.S. citizenship.

The Trump administration will be hoping that the new conservative super-majority on the Supreme Court reexamines congressional intent and sides with the dissenters in the 1898 case. It’s impossible to say which way the justices will rule, but any Trump supporters weighing the probabilities will be encouraged not just by the new political complexion of the Court, but also by its relative lack of inhibition in overturning decades of erroneous settled law in high-profile recent cases about abortion and Chevron deference.

Refugees and Humanitarian Programs

Presidents have the power to decide how many refugees the country will accept each year; that number will plummet from the figure set by Biden for 2024 of 125,000. During the first four Trump years, the ceiling was steadily reduced from 110,000 at the end of the Obama administration to 18,000 for 2020. This will be effectively unchallengeable as the president’s authority in determining the refugee cap relies primarily on INA §212(f), a provision that the Supreme Court has found to be sweeping and all but legally unassailable.

Mr Trump will again try to end DACA — a program that protects from deportation immigrants brought to the country illegally as children — if the courts do not decide it is unlawful first. It has already been hanging by a thread for the past several years. Trump tried to end it in his first term only for the Supreme Court to hold in 2020 that the then-DHS Secretary’s decision to rescind DACA was flawed on narrowly procedural grounds. The Biden administration has since tried to protect the program by defending it in court, but a federal judge in the Southern District of Texas found the program illegal in 2021 and again in 2023. The case is now back before the Fifth Circuit and may ultimately reach the Supreme Court again. While the current SCOTUS would likely hold the program unlawful irrespective of which president is in power, the fact that the incoming administration agrees that DACA is an illegal abuse of executive power probably dooms it over the next four years.

The Biden administration has massively expanded the use of parole, a discretionary authority granted to the DHS Secretary under INA §212(d)(5) to allow an individual to enter or remain in the United States instead of being granted a visa or formal admission. Parole was originally intended as an exceptional measure to be granted for a finite period on a case-by-case basis, but the Biden team has abused it in order to allow entire nations to pour in irregularly. Country-specific parole programs have been adopted for Cuba, Haiti, Nicaragua, and Venezuela, as well as Afghanistan, Ukraine, and central America, with staggering results for the numbers admitted.

It is probable that Trump will terminate all these country-specific parole programs. Indeed, during the first administration, Trump took steps to terminate such programs of this nature as existed at that time, like the Haitian Family Reunification Parole scheme. As the administration put it in its 2019 declaration of their cessation, “Parole is to be used on a case-by-case basis for urgent humanitarian reasons or significant public benefit. USCIS is committed to exercising this limited authority in a manner that preserves the integrity of our immigration system and does not encourage aliens to unlawfully enter the United States.”

This Trump administration is also likely to terminate most, if not all, new Temporary Protection Status (TPS) designations in addition to not renewing Biden’s myriad prior designations. It attempted to terminate TPS for Haiti, Sudan, El Salvador, Nicaragua, Honduras, and Nepal during its first administration, but the terminations were successfully enjoined by the courts. However, that legal challenge was in a vulnerable position at the end of Trump’s first term, as the Ninth Circuit had vacated a lower court’s injunction that prohibited DHS from curtailing TPS for these countries. Future challenges to TPS terminations are unlikely to be more successful under a more conservative judiciary.

Legal Immigration 

In his 2016 campaign Mr Trump promised to create a “big beautiful door” for legal immigration. But his administration — largely under the influence of Stephen Miller, who served in a similar role then — quietly slowed down the machine that issues visas and work permits, guided by a conviction that America’s legal immigration system was damaging cultural cohesion and shortchanging US workers. From 2016 to 2019, average waiting times for visas rose by 46% as a result, according to analysis by the American Immigration Lawyers Association.

We can probably expect a repeat in the second term, with increased vetting requirements and fees for visa applications to resurrect the “paper wall”. Based on his first administration, Trump will likely also reduce the number of U.S. consular staff who process immigrant visa applications, close USCIS overseas offices to eliminate expedited adjudication, and require all applicants to appear at a USCIS interview (increasing the already long backlogs).

Given that roughly two-thirds of permanent residents gain that status each year based on a family relationship, Trump’s team will likely target family-based applicants in particular to bear down on numbers. During his first administration, the DHS and the Department of State achieved this by redefining the meaning of a “public charge” so as to screen out any applicants for lawful permanent residence that were likely to become a fiscal burden. Biden’s DHS reversed this change, but the second Trump administration will likely publish a memorandum restoring a more restrictive interpretation of the five relevant statutory factors – age, health, family status, financial status, and education – in order to preclude low-income family migration.

Trump is also committed to reinstating his travel ban on citizens from designated countries, as he famously did to several mostly Muslim-majority nations during his first term. Although this policy was rebuffed twice by the courts, it was finally upheld by the Supreme Court on a third attempt, which held that the president lawfully exercised the broad discretion granted him under INA §§ 212(f) and 215(a) to suspend the entry of any class of migrants if the president finds that their presence “would be detrimental to the interests of the United States”. SCOTUS held that this provision “exudes deference to the president”, so the ban is likely to survive legal challenges if reintroduced, and may be expanded to cancel the visas of foreign students who participated in anti-Israel protests.

The biggest battle around legal immigration policy is likely to be over H-1B visas. Tech companies — with Elon Musk seemingly on their side — are gearing up to push this administration to hand out more of these to what they call “high-skilled” immigrants, setting up a conflict with restrictionists such as Stephen Miller who caution that foreign STEM workers take American jobs and depress wages. The H-1B war erupted over Christmas online between Musk/Ramaswamy and the restrictionist right. The policy outcome hasn’t been decided yet, but the fact Ramaswamy was sacked from DOGE straight afterwards was seen as a win for the restrictionists.

The restrictionists largely prevailed during Trump’s previous presidency, when under Miller’s influence, Trump slashed the number of green cards issued and denied applications and extensions for H-1B visas. We should hope they win again for several reasons. For starters, half of the top-ten H-1B visa sponsors are IT-outsourcing companies, who make money by hiring cheaper labor brought in through H-1B visas, then eventually offshore those jobs to India; when you hear stories of Americans having to train their foreign replacements before getting fired, it’s these outsourcing firms that are largely responsible.

The system is also geared towards wage suppression, as H-1B workers can be hired at a discount compared to Americans. Employers can set their own prevailing wage rates based off dubious wage surveys, and two out of the four wage levels in the Labor Condition Application (a document that has to be filed with the Department of Labor when filing for an H-1B) are set well below the median wage level.

Nor is the H-1B visa particularly meritocratic. There are 85,000 of these visas available each fiscal year and the number of petitions far exceed the quota, so in practice the federal agency that handles visa processing, USCIS, selects petitions through a random lottery. Even if you have a STEM PhD from Harvard, this means you have the same odds of getting an H-1B as someone with a Bachelor’s degree from a low ranked university in India. This helps to explain the huge mismatch between where H-1B recipients come from (mostly, the subcontinent) and the breakdown of those on the truly high-skilled O-1 visa (who largely hail from other developed countries).

Now or Never

Democrats and many in the media have spent four years conceding that America’s immigration system is broken but arguing that the only fix is for Congress to pass another mass amnesty coupled with a hollow promise of some future border enforcement. But Congress has already provided the executive with tools needed to regulate immigration, legal and otherwise. Trump possesses the political will to use them. Congress cannot legislate that, but American voters have just decisively voted for a President who put immigration restriction at the very top of his agenda. We are learning whether he’ll live up to his promises, but the early signs – from stacking his Cabinet with immigration hardliners to confirming he intends to declare a national emergency and use the military to aid his plans — are that, in nearly every conceivable way, this second Trump administration will go much further than his first term in securing the border and reforming legal immigration on America First principles.