Why Trump’s Immigration Policies Will Be So Hard to Undo
“The moment Trump became a presidential candidate, I was worried because of what his campaign promoted,” Elsa Valle says. “And the moment he was elected, I was sure he would accomplish it.”
A 42-year-old mother of two, Valle was a machine operator at the same New Jersey company for 20 years until the virus shut its doors a few months ago. A native of El Salvador who came to the United States without papers, Valle has been protected from deportation since 2001, when George W. Bush granted Temporary Protected Status — a classification that prohibits deportation to countries devastated by war or natural disasters — to Salvadorans like herself and her husband. The couple’s eldest son later became a recipient of DACA, the Obama-era policy intended to help undocumented immigrants brought to the U.S. as children gain legal status. Their youngest son is a U.S. citizen.
In September, the day after a circuit court affirmed the Trump administration’s decision to end Temporary Protected Status not just for Salvadorans, but Nicaraguan, Haitian, Sudanese, Honduran, and Nepalese immigrants, Valle held back tears. “My whole life I’ve worked, my husband has worked,” she says. “We contributed to Social Security and always paid our taxes. We’ve never needed help.”
In just a few short years, the Trump administration has dismantled the programs that protected Valle’s family, casting their future — along with so many others’ — into doubt. She and her husband are now confronting the fact that they could be facing deportation proceedings within a few months. Their eldest son’s status, at least for the time being, is still protected. (In June, the Supreme Court decided the Trump administration had ended DACA illegally, but in its decision the court outlined the specific steps required to invalidate the program constitutionally, as the administration now plans to do.) As for their youngest son, just 14 years old, Valle says she would insist he stay here rather than return with them to El Salvador. “It’s a dangerous country because of the gangs. Jaime has to live here — they would kill him.”
There are any number of figures one might choose to quantify the damage Trump has done to America’s long-standing commitment to immigrants: 400,000 (the number of TPS recipients, like Valle and her husband, that could be forced to leave the U.S.); $11 billion (the amount spent, to date, on “the wall”); 16 (miles of wall built since Trump took office where no previous barrier existed); 2,654 (the number of children separated from their parents); five (the median number of months those children spent alone in U.S. custody); 583,420 (the number of skilled foreign workers whose futures were thrown into limbo by abrupt changes to H1B visa rules); $76 billion (the estimated amount those skilled workers contribute, annually, to the U.S. economy). And on and on.
But the figure that might be the most sobering is the number of immigration-related regulations the Trump administration has succeeded at muscling through in less than four years — so many, in fact, that there isn’t even agreement on it among experts. Estimates range from more than 400 to over 1,000. The sheer volume is so staggering that Trump senior adviser Stephen Miller, the zealous ethnonationalist architect of many of these policies, once promised that it will be a “difficult, complex, and time-consuming” process for the next president to unwind them.
Sarah Pierce, an analyst with the nonpartisan Migration Policy Institute, happens to agree with Miller about that. In the early days of the administration, Pierce and a co-worker started a shared document to keep track of the changes, but even experts like themselves found it difficult to keep up with the deluge. There were the big, sweeping declarations that got a lot of attention — the Muslim ban, family separation, the fight over border-wall funding — but Pierce and her colleague quickly began to realize that many more of the administration’s other changes were flying under the radar. “There’s been a group of individuals working in this administration at an extremely fast pace to accomplish the [president’s] agenda using a lot of technical tools that just aren’t sexy and don’t appeal to the general media,” Pierce says.
Almost none of the changes the Trump administration has made went through legislative channels. Congress, Pierce says, “just [took] a complete back seat and let it all happen.” One might assume that would make them easier for a future administration to undo, but Pierce says that’s not necessarily the case. The administration, she explains, used a strategy she and her colleague came to think of as layering, creating a series of interlocking rules. An executive order might be challenged in a high-profile court case, but even as it was being litigated in court, a smaller modification — inserting a line in a consular handbook, for example — might go unnoticed. “You would see a change come out using one bureaucratic tool, and then that exact same change come out again later, using a different bureaucratic tool,” Pierce says. “They used every available bureaucratic tool to accomplish their agenda.” They did it that way, she says, “to insulate against court challenges, certainly. But I also think they are making it more difficult for a future administration to reverse everything.”
Trump’s growing influence over the courts could also make it harder to undo the damage he’s done. Early in Trump’s term, judges, particularly in the lower courts, were quick to spike the president’s executive orders, but as his time in office wore on, the Migration Policy Institute analysis found, the administration’s arguments about the president’s authority to effect immigration policy gradually began to persuade judges. In 2019 alone, the Supreme Court overruled challenges to the Trump administration’s “Remain in Mexico” policy (an effective ban on asylum seekers), OK’d the administration’s decision to divert Pentagon funding to a border wall, and affirmed changes to visa rules. An appeals court even gave a green light to the Justice Department to limit federal funding to sanctuary cities.
Even at times when the courts ruled against Trump, his efforts only appeared to have been stymied. Take DACA for instance: The Migration Policy Institute estimates that between September 2017 — when the administration stopped accepting new applicants — and July 2020, a month after the Supreme Court ruled that the administration had ended DACA illegally, half a million young immigrants were eligible for DACA benefits but were unable to apply. Now, the administration has trotted out a new tactic: denying all first-time applications and granting shorter renewals for existing Dreamers, while working to institute the changes Chief Justice John Roberts outlined in his majority opinion on the case that would end the program legally, once and for all.
Trump’s anti-immigration agenda only intensified when the coronavirus hit. The administration may not have moved swiftly to encourage masks, provide widespread testing, or even acknowledge the basic facts about the virus, but it did move with unusual speed and efficiency to further restrict immigration. “The COVID-19 pandemic gave the administration new openings,” says Pierce. On March 20th, as the president was promising the virus would disappear, the director of the Centers for Disease Control and Prevention was invoking an obscure, never-before-used power vested in the surgeon general in 1944 to block the entry of foreign nationals who pose a public-health risk. That move essentially sealed the southern border, expelling anyone who arrived without giving them a hearing. “Asylum is essentially over,” Pierce says, “now that they’ve issued that order.” In the months since, subsequent reporting has revealed Vice President Mike Pence, on the advice of Stephen Miller, ordered the CDC to use the power despite the protests of the agency’s own scientists. An estimated 150,000 individuals, including nearly 9,000 children, have been turned away because of the guidance so far.
Even before the pandemic offered the president the ultimate opportunity to deadbolt America’s doors, his administration had succeeded at driving away migrants who dreamed of settling here. Unlike past presidents, Trump has discouraged immigration of all forms — including legal immigration. Over his tenure, applications for green cards dropped to their lowest number in half a decade, and the number of foreign nationals outside the country applying for temporary visas has dropped by 17 percent. He prioritized the arrest and deportation of all undocumented immigrants in the country, in contrast to his predecessors who prioritized immigrants convicted of a crime. Arrests of immigrants without a criminal record have more than doubled over the past four years. The United States, a global leader in resettling refugees since World War II, has virtually abandoned that commitment. In 2016, more than 80,000 refugees were resettled in the U.S. from countries plagued by war or conflict; in 2020, fewer than 11,000 were accepted, the lowest figure since the modern U.S. refugee resettlement program began.
There will be no easy fixes to the mess Trump has made of U.S. immigration policy, says Pierce. Even though they’re mostly administrative, the sheer number and interlocking nature of the changes virtually guarantee that Donald Trump’s imprint on America’s immigration system will be visible for a long time.
The most difficult challenge, she says, would be reimagining, in the wake of Trump, what a humane and practical immigration policy looks like. For decades, Congress and presidents, Democrat and Republican, have failed to agree. “There’s a lot of concern that if a new administration quickly unrolled everything that [the Trump administration has done] at the southern border, we would see another surge, and it would be a surge that we weren’t prepared to handle,” Pierce says. “We don’t have the proper processes or resources in place to handle the humanitarian flows that we’ve seen under the administration.”
For now, families like Elsa Valle’s are determined to keep fighting, but are unsure what options they have left. “My younger second son was born here, his life is here, his future is here,” Valle says. “We’re not going to be defeated so easily. I’m going to continue fighting.”
Valle’s Temporary Protected Status is not set to expire until the next presidential term. For people like her, her husband, and the 400,000-odd TPS recipients living in the United States, Pierce says. “The best opportunity they have is for a new presidency.”