In my January 4 comment on this site, I gave two examples of how the two Republican presidential candidates with the toughest stances on immigration, Donald Trump and Ted Cruz, share common positions on matters such as reducing legal immigration and opposing automatic birthright citizenship for all US-born children without regard to their parents' immigration status.

I also pointed out that even though the two candidates share these common policy objectives, they appear to have fundamentally differing views about the role of the US Constitution in achieving these goals.

Specifically, while Trump and Cruz both support a temporary moratorium on specific types of legal immigration, the moratorium which Trump favors, namely barring more than a billion Muslims from around the world purely because of their religion, raises serious constitutional problems because it comes close to the line of outlawing an entire religion, in clear violation of the establishment of religion and free exercise clauses of the First Amendment.

As I also argued in my January 4 comment, such a broad ban against an entire religious faith when practiced by foreign citizens would adversely affect the right to free exercise of religion by Muslim American citizens, not only immigrants. (See Kleindienst v. Mandel, 408 U.S. 753 (1972), a case which I will have more to say about in a future post.)

Unlike Trump, as my previous post also explained, Cruz wants to put a temporary (180-day) ban on H-1B visas, not one of vague and indefinite duration such as Trump's proposed ban on the entire Muslim religion as practiced by non-US citizens seeking to enter the US.

Destructive and shortsighted though Cruz' H-1B proposal is, it does not raise any issues about violating the Constitution.

In the same way, as I also pointed out before, Trump perversely refuses to accept the fact that automatic birthright citizenship for all US-born children is the law of the land under the 14th Amendment, and has been so for almost a century and a quarter, ever since the Supreme Court's Wong Kim Ark decision in 1898. As I mentioned, this puts Trump in the class of a "birthrighter" not only "birther", as he has justly been called for refusing to recognize President Obama's US citizenship (and ironically, now also refusing to recognize the US citizenship of Canadian-born Senator Cruz!)

Cruz, on the other hand, also supports limiting birthright citizenship, but appears, at least by implication, to acknowledge that this would require amending the Constitution, as also discussed in my previous post.

Now, another issue has come up which highlights the difference between Cruz' basic respect for the spirit of the constitution, not only the letter, and Trump's tendency to disregard the constitution and the entire democratic concept of rule of law.

Cruz and Trump both support the drastic, and arguably inhuman, policy of mass deportation of 11 or 12 million unauthorized immigrants presently in the United States, something which could well be considered a form of ethnic cleansing.

But Trump wants to do it through a special task force. Cruz, on the other hand, to his credit, has condemned what would amount to using storm troopers to raid homes and summarily expel people from the US. Within the memory of a great many people who are still alive today, this was done against another unpopular minority in another place and time by a leader who did not consider himself bound by any laws or constitution except his own.

On January 10, Cruz told CNN:

"No, I don't intend to send jack boots to knock on your door and every door in America, that's not the way we enforce the law for any crime...

We don't have any system that knocks on the doors of every house in America...That is not how the American law enforcement system works...We don't live in a police state."

Just in case there are any readers who think that the term "jackboot" refers only to a men's fashion item, I will provide an extract from the Collins English Dictionary definition:*

"...later a type worn by German military and paramilitary units in the Nazi period."


*Copyright William Collins Sons & Co. Ltd. 1979, 1986 Copyright HarperCollins Publishers 1998, 2000, 2003, 2005, 2006, 2007, 2009, 2012

Regardless of the content of a given immigration policy, it makes a good deal of difference whether that policy is enforced in a way consistent with the rule of law in a democratic country governed by a constitution, or whether it is carried out by methods typical of a totalitarian regime.

Many people think that police state rule could never happen in America. Senator Cruz, a figure with impeccable conservative credentials who is himself a hard-liner on immigration, but still believes in the constitution and the rule of law, is warning that it can.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly professional and skilled immigrants from many parts of the world obtain work visas and green cards. His email address is