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The Threat to Close the Border

Terry H. Schwadron

Oct. 27, 2018

Let’s book the court time now. No wonder President Trump and the Republican leadership are pushing judges. They need more judges just to hear the inevitable cases arising from presidential executive orders.

Once again, President Trump is creating a crisis by his actions, overstating the risks from a migrant caravan still hundreds of miles away. The president promised yesterday to evade all congressional involvement or normal legal standards to suspend Central Americans from seeking asylum even before the caravan of people fleeing Honduran violence and hunger walk to the United States’ Southern border.

The president cites the same legal point as he did in calling three times for a legal Travel Ban against Muslims in closing the border and to enforcing it by sending 800 regular U.S. Army troops to join 2,000 National Guardsmen to the border.

Now, as I have noted previously, these military troops cannot actually legally stop any immigrants. They are limited to traffic or backstopping activities, which, in turn, might free more border agents to meet the immigrant marchers.

But then, this is more about political posturing 10 days before the election than it does with actual border enforcement.

Under the law, immigrants can legally come to the border at designated stations and apply for asylum, though, increasingly, filing that paperwork is pretty futile. The White House has reset limits for asylum so low as to make much of the effort involved to be meaningless. The proposed new shutdown would eliminate that normal legal process.

What is so remarkable about this border shutdown is the bald use of presidential power by this president, though some of the details remain under review. Administration critics over immigration are standing by to file legal action immediately to stop the proposal from taking effect.

As Greg Sargent argues in his Washington Post column, “The idea that the migrant caravan represents an emergency for the U.S. is absurd. Estimates from Mexican authorities indicate that the caravan, which remains over 900 miles away, has already dramatically dwindled in size, and is now mostly made up of destitute families who are traveling with children and living off of food supplied by people along the way.”

The president’s actions reflect a failure of his immigration policy overall. Now, to make up for the effects, he is seizing a wide chunk of presidential power that may well prove unlawful.

On the political front, Trump has seized on the migrant caravan to build his anti-immigrant fear message. He depicts the Central American families as dangerous criminals and Democrats as their enablers. He also insists that the marchers, who are largely women and children, includes criminals, gang members and Middle Easterners — all without proof.

On the legal front, Trump the administration argues that the president can use his authority under Section 212(f) of the Immigration and Nationality Act to declare certain migrants ineligible for asylum because it “would be contrary to the national interest” and “detrimental to the interests of the United States.” That is the same legal authority he invoked during the travel ban.

On the international front, Trump’s move will endanger relations with Mexico as well as the new trade deal he just announced involving Mexico and Canada. Mexico has said it too has no interest of housing these immigrants in large numbers over an extended period.

And on the military front, this is mostly emotion, not military muscle. The very presence of armed military clearly raises the possibility of a mistaken shooting or confrontation that could quickly spread among this large-sized group of immigrants. The four states that have sent National Guardsmen already are complaining about the purposes being unclear. Under a Pentagon order that could be issued as soon as Friday, they would not make arrests or operate in an enforcement role, according to The Post.

One potential problem with the border entry ban under consideration is that migrants who cross illegally would still have to be taken into U.S. custody. The administration could attempt to deny them access to U.S. courts and expedite their deportation, but those migrants would have to be returned to Central America, unless the Mexican government agreed to take them.

Of course, a Wall along the border would not stop marchers like this. Or if this effort to block people is successful without a Wall, why are we still talking about this as a solution.

Let’s acknowledge that there is a real problem here with thousands of people fleeing their homes, friends, language and the rest to seek a new life in the United States. There are better answers than sending armed solidiers to guard the front door.


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