3 Problems with Donald Trump’s Immigration Plan

3 Problems with Donald Trump’s Immigration Plan

Photo by Gage Skidmore

Yesterday, Donald Trump released his first policy white paper, unsurprisingly about the issue on which his campaign and his appeal to his supporters is most solidly based: immigration.

Brief, at times undetailed, and coming in at about 1800 words, it will not change the minds of his critics who charge that his positions have lacked specifics. At the same time, it is bold, controversial and seeks major change in every area his backers could have hoped for.

There are, however, at least three proposals that are unrealistic, unconservative, fiscally or economically irresponsible or some combination of the above.

  1. Make Mexico pay for the border wall

This first section of the plan echoes what might have been thought an off-hand debate remark by Trump, but here he doubles down on it. Mostly, this part of the paper counts the costs of illegal immigration – fiscal, economic and personal – but only briefly at the end offers a plan to actually force the Mexican government to pay for the wall.

This comes in the form of raising fees and costs on Mexicans coming to the United States:

  • Impound all remittance payments derived from illegal wages
  • Increase fees on all temporary visas issued to Mexican CEOs and diplomats (and if necessary cancel them)
  • Increase fees on all border crossing cards – of which we issue about 1 million to Mexican nationals each year (a major source of visa overstays);
  • Increase fees on all NAFTA worker visas from Mexico (another major source of overstays)
  • Increase fees at ports of entry to the United States from Mexico [Tariffs and foreign aid cuts are also options].

Notably, only one of these directly impacts illegal immigrants. Only one other actually impacts Mexican government officials – here, diplomats. His final idea will impact the Mexican economy, but only at the cost of impacting the American economy as well. (It is not the last idea Trump has to raise costs for American consumers.)

If we assume for a moment that the Mexican government cares about increased costs for migrant workers – something it seems safe to doubt – there are still three unanswered questions: 1) can Trump get all of the increases passed in Congress, 2) can they actually be raised significantly enough, and 3) how much will Mexico actually feel the hit economically?

Color me skeptical that this will make Mexico enthusiastic about picking up the tab for our border security.

Another problem with this part of Trump’s plan: he is correct that both NAFTA workers with visas and those who cross the border legally with cards who overstay make up a large number of the immigrants here illegally – in fact about 40%.

But while Trump wants to crack down on overstays by increasing the penalties on those who do it, his increases in fees fall on those who are coming here legally in the first place. His plan, then, is to disincentivize Mexican workers and others from obtaining the legal right to come here (and possibly to work) by raising the costs of doing so in order to bring down the number of illegal immigrants here in the long run.

It doesn’t take a degree in economics to realize that this will simply make it more attractive for potential Mexican migrants to eschew the legal process and come here illegally if they are desperate for work. In other words, Trump’s plan is to decrease illegal immigration by means that will also increase it.

  1. Ending birthright citizenship

Here it seems that Trump wants to amend the Constitution. The 14th Amendment, passed in 1868, enshrined what was largely practice in the United States from the time of the framers: those born within the territory of the United States are considered to be citizens.

The relevant clause reads:

“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.”

If Trump simply wants to end birthright citizenship outright, he would be departing from hundreds of years of precedent that allowed children born to people here legally who were not yet obtained citizenship to be citizens themselves by matter of birth, granting those children many of the opportunities their parents hoped to make available to them legally.

(The Federalist’s Ben Domenech lists a number of great Americans whose right to citizenship Trump would be calling into question.)

Certainly one can argue that “and subject to the jurisdiction thereof” implies that birthright citizenship does not extend automatically to everyone born in the United States. This still requires legislation specifying that children of illegal immigrants don’t count – good luck with that, Donald – and a Supreme Court that upholds it.

Perhaps Trump does intend to pass legislation saying that only children born within U.S. borders to people here illegally will no longer receive birthright citizenship. He doesn’t say so. It might be possible to overlook that detail if it were be proposed in an op-ed. Unacceptably, he fails to make the distinction in his own white paper – albeit a short and vague white paper.

Even Mark Krikorian of the very conservative Center for Immigration Studies believes “ending birthright citizenship would only be possible along with amnesty for those undocumented immigrants already in the country so that their children would be citizens,” according to The Washington Post.

The story goes on to explain that “otherwise…he would be worried about the unauthorized population—unable to work and without any legal connection to their native country.”

  1. Increase prevailing wage for H-1Bs

H-1Bs are essentially work visas for foreign workers with specialized skills. By raising the minimum wage that can be paid H-1Bs, Trump is hoping to attract American citizens with specialized skills to the jobs H-1B workers would otherwise take for lower wages.

Apparently, Trump is fine with minimum wage controls as long as they shut out Mexicans and other foreign workers. Economic laws will still be in effect, of course, so prices will still go up for American consumers. (We already saw that Trump is okay with this outcome.)

On top of this, he wants to institute a “hire Americans first” requirement. This is no different economically from unions, whose entire purpose is to keep other people from competing for jobs in order to protect their own. Again, economic laws tell us this promotes inefficiency and raises prices. This is a time when the American middle class can’t afford it.

Again, these are crackdowns on foreigners here legally. It is not an attempt to discourage law-breaking. The only difference between his proposals and the minimum wage laws and unions that almost all conservatives recognize are too prevalent is the people who are shut out – even though they broke no laws.

Trump is successful businessman and he understands basic economics. It is clear that he is proposing nonsense policies because it is what some want to hear. What America really needs is a free market.

There are good and important policies in the Trump plan, such as the mandatory deportation of illegal immigrants who committed crimes here, as well as stiffer penalties for those who overstay their legal visas.

What America doesn’t need is a president whose immigration policy is overrun with anti-free-market protectionism and who stokes undue fear about people who come to this country legally, like most of our ancestors did.

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11 COMMENTS

  1. Three problems with Trump’s plan (from a RINO point of view)
    1. Trump has called out the status quo as a serious long neglected issue.
    2. He is postulating the need to reverse this trend if we are to survive as a nation.
    3. He includes in his solutions the need to burden the cost of the solution to those presently benefitting from the alien invasion anarchy.

    • I keep hearing the pundits say Trump says Mexico will pay for the wall and that is impossible. Trump did not say that Mexico will write a check for the wall and say gracious. He is talking about the Trillions of dollars we will save once All the illegal moochers are gone. He is talking about the Trillions of dollars in tax revenue that will be paid by the Americans that will have well paying jobs instead of unemployment checks. The illegals, no matter what the libs or Rino’s say, are not just blowing leaves or scrubbing toilets or picking fruit. They are doing former great paying jobs such as construction of highways, bridges, high rise buildings and homes. They operate Drilling rigs, forklifts, bulldozers, cranes and other heavy equipment. They are electricians, welders and plumbers. They are not just doing work Americans are too lazy to do. They are doing the jobs that Americans can no longer do at the cheap, subsidized rate the illegals can. With the savings from the Huge amount of cash the illegals send home and the added revenue the illegal employers will have to pay American workers the wall will be paid for a thousand fold.

  2. one can argue that “and subject to the jurisdiction thereof” implies that birthright citizenship does not extend to citizens of another country since they are under their home countries “jurisdiction”

    By George F. WillSunday, March 28, 2010

    A simple reform would drain some scalding steam from immigration arguments that may soon again be at a roiling boil. It would bring the interpretation of the 14th Amendmentinto conformity with what the authors of its text intended, and with common sense, thereby removing an incentive for illegal immigration.

    To end the practice of “birthright citizenship,” all that is required is to correct the misinterpretation of that amendment’s first sentence: “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.” From these words has flowed the practice of conferring citizenship on children born here to illegal immigrants.

    A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, “can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state.” Therefore, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry.”

    Writing in the Texas Review of Law and Politics, Graglia says this irrationality is rooted in a misunderstanding of the phrase “subject to the jurisdiction thereof.” What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

    If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration — and had anticipated huge waves of illegal immigration — is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.

    The Civil Rights Act of 1866 begins with language from which the 14th Amendment’s citizenship clause is derived: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning — divided allegiance — applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. Indeed, today’s regulations issued by the departments of Homeland Security and Justice stipulate:

    “A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment.”

    Sen. Lyman Trumbull of Illinois was, Graglia writes, one of two “principal authors of the citizenship clauses in 1866 act and the 14th Amendment.” He said that “subject to the jurisdiction of the United States” meant subject to its “complete” jurisdiction, meaning “not owing allegiance to anybody else.” Hence children whose Indian parents had tribal allegiances were excluded from birthright citizenship.

    Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born “subject to” U.S. jurisdiction because, among other reasons, the person so born could not change his status by his “own will without the action or assent of the United States.” And “no one can become a citizen of a nation without its consent.” Graglia says this decision “seemed to establish” that U.S. citizenship is “a consensual relation, requiring the consent of the United States.” So: “This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person’s citizenship than to make the source of that person’s presence in the nation illegal.”

    Congress has heard testimony estimating that more than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally. Graglia seems to establish that there is no constitutional impediment to Congress ending the granting of birthright citizenship to those whose presence here is “not only without the government’s consent but in violation of its law.”

    http://www.washingtonpost.com/wp-dyn/content/article/2010/03/26/AR2010032603077.html?nav=rss_opinion%2Fcolumns

    • Thanks so much for your comment, John. It’s always good to see what George Will says about an issue.

      I agree with his and, I presume, your assessment that that clause in the 14th Amendment was not intended to apply to the children of illegal immigrants. I do think, however, because of the long abuse of this clause, Congress will need to specify this in legislation (and SCOTUS will have to uphold – fingers crossed). An executive order to the relevant governmental agencies might suffice, who knows?

      The bigger issue I have is that in an official policy paper, Trump has failed to specify that he only means ending birthright citizenship for the children of illegal immigrants. He only makes the broad statement about general birthright citizenship. It’s either sloppy and he expects us to assume correctly what he means or he is stoking the fears some people have about legal immigration. Neither gives me much confidence in him on this issue.

    • I have read Will’s and Graglia’s arguments. They are clever and possibly right.

      But as Graglia surely and Will probably know, it is also quiet a stretch because the phrase “subject to the jurisdiction” is a very common legal phrase with a general, uncontroversial meaning in all other contexts and which universally agreed upon by everybody with legal training.

      And that meaning of “subject to the jurisdiction” is owing obedience to the laws and the courts of that jurisdiction. Unless you are willing to argue that aliens (all? some? illegals?) are and should be free to murder or not pay taxes without legal consequence–a status actually enjoyed only by diplomats and their families–you must say that they are “subject to the jurisdiction” of the United States.

      Now, it is fair to argue that in this specific instance and context, the phrase means something different from its ordinary meaning and Graglia makes a good effort to that effect. But anybody who endorses that argument must admit that they make an argument very similar to the justly mocked argument in the most recent ObamaCare case that, in context, “established by the State” does not actually mean “established by the State.”

      • The original framers of the 14th believed the phrase “subject to the juridiction” meant anybody that is a citizen of or owes their allegiance to another nation could not claim birthright citizenship. The test: Not even Native American Indians could claim birthright citizenship under the 14th. That was later fixed I believe in 1932 with a Constitutional ammendment.

        • You are assuming your conclusion in the first sentence as if it was self-evident. That a very common, standard legal phrase (“subject to the jurisdiction”) means something entirely different than every lawyer today would understand it and the Supreme Court of the United States understood 30 years later is far from self-evident.

          True, Graglia has unearthed some evidence that some in Congress at the time of the passage said that they intended to do something else. That has some weight. But in the end it matters not what some member or even all members of Congress “intended” to do, but what language they actually passed and how a legally educated observer would understand it.

          If you were around for the King v. Burwell (the recent Obamacare subsidy case) debates, you may recognize that your arguments here about what was in the mind of the legislators are identical to the progressive line in King v. Burwell. Conservatives near-unanimously adopted the opposite position that the law means what it says, not some indeterminate intent.

          One shouldn’t tailor one’s legal principle to suit the issue at hand.

          PS: It was the Indian Reorganization Act of ’34 that changed the status of American Indians. Congress can confer citizenship by statute, even if the Constitution does not require it.

  3. This article has made some assumptions that simply are not true. (And Trump would agree.)
    The 14th Amendment does NOT grant birthright citizenship.
    The pundits, including Cal, have no clue about this. (George F. Will in particular.)

    This article is therefore a product of RNC shilling.

    Conservative Intel via Karl Rove?
    Subscribe and you become the product of a slow and dedicated target of the RNC progressive shill machine.

    What this country needs is anybody but the hand picked RNC candidate, Jeb Bush.

    • “The 14th Amendment does NOT grant birthright citizenship.” I am open to an argument that it might not. But you just state that as if it was an undeniable legal fact. If you want to advance a legal argument against the holding of the United States Supreme Court in U.S. v. Wong Kim–decided not by some loony Douglas opinion during the Warren years–but only thirty years after the passage of the 14th amendment, you’ll have to do better than mere vehement asseveration.

  4. 1. How does having Mexicans pay for the wall NOT help in stopping illegal immigration, regardless of where that revenue comes from? Oh, I get it, you think his option is to make illegals ONLY pay for it. A confusion I haven’t heard even from liberal friends. 2. His plan would NOT stop children of legal citizens from giving birth and having qualified for citizenship, but again, your misunderstanding that our laws are written for CITIZENS, not anyone who can sneak across the border, makes this argument a new low for liberal mouthpieces. 3. The H1B visa was meant to bring in the best minds, not be a discount market for talent. Again, an epic fail from another shallow end reporter.

  5. I sent an email to the TRUMP campaign – I volunteer one week of my vacation time when he is Pres to help BUILD the WALL for FREE! Zero taxpayer cost. Please join me, send an email… let’s start something!

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