Update: November 8, 3:50 pm:

For an extensive fact check of many of the false, inflammatory claims regarding immigration and immigration policy that Donald Trump made in his August 31 Phoenix immigration speech see: Washington Post, September 1:

Fact-checking Donald Trump's immigration speech

by Michelle Ye Hee Lee and Glenn Kessler.

(I am sorry that I am not able to find the complete link; the article can be easily accessed on Google.)

My original post follows:

It is not the function of this blogging site to take sides or comment on political matters, but as Immigration Daily points out in its November 7 editorial, today's election involves immigration policy issues which are arguably more prominent than they have been in over a century. It is no exaggeration to say that the outcome could have a major effect on America's immigration system and demographics for at least the next fifty years, just as the momentous 1965 immigration reform law, which is now under attack from some restrictionists and which Donald Trump, at least indirectly, criticized in his August 31 Phoenix immigration address by referring to "decades old", "outmoded" immigration laws, has done in the past half century.

Therefore it would be both a rejection of reality and, I sincerely believe, a disservice to Immigration Daily readers not to make a few observations about today's election and its potential effect on immigration, as well as the democratic institutions on which our immigration system is based.

There are, to be sure, those who believe that no matter who wins today, our immigration system, and our democracy, will somehow go on or muddle through as usual, without any major changes. With all due respect, this ignores the doctrine of plenary power by the "political branches" of government, namely Congress and the executive, which has been central to our immigration law ever since the late 19th century and its notorious Chinese exclusion laws.

It also overlooks the enormous power that the executive branch, namely the president, has in determining immigration policy through wide ranging regulations and "policy memos", not to mention agency decisions by the AAO, BIA, USCIS Service Centers, and various ICE and CBP officials. I have given some USCIS examples in my November 7 Immigration Daily comments.

No lawyer who has any immigration experience at all can dispute the fact of the extensive power that these officials, and the president who is responsible for appoint them, wield. True, their power is not unlimited. They are subject to control by Congress, and in many instances, by the federal courts, despite the plenary power doctrine.

Would it irrelevant to ask who controls at least one of the two parties in Congress and who appoints the federal judges who have at least some oversight over the immigration system? The president, of course. It is often pointed out, of course that our system of government is based on checks and balances.

But what kind of checks and balances will there on immigration policy when a president has the power, not only to appoint the official carrying out that policy, but when he has control over at least one, if not both Houses of Congress, and has the power to appoint not only the Supreme Court but the lower court judges who would (in some instances) be reviewing that policy?

We should also not ignore INA Section 212(f), which gives the president almost unlimited power to suspend any kind of immigration for almost any reason whatever. Could Donald Trump be relied on to exercise caution and restraint in using these enormous governmental powers?

How much restraint has he shown in his actions and comments during his campaign? According to the latest reports, Trump's own campaign advisers do not even trust him enough to let him continue to use his Twitter account.

It is also argued that a president can be reined in by the media, or by public opinion. How much a a check would the media be on a president who is now threatening to "open up" the libel laws to stifle criticism, who has said that he is "fine" with sending American citizens to Guantanamo and with using torture, and who is threatening to jail his opponent for the White House if he is elected?

Still, all of this might not create much concern for immigration advocates except for one thing: from start to finish, whether in talking about Mexican immigrants in June 2015 at the beginning of his campaign, or Somali immigrants just this past weekend, Donald Trump's attitudes to immigration from outside white Europe, have been characterized by just two words: fear and hatred.

Beginning with his characterization of Mexican (and by extension, other Latino immigrants) as "criminals", "rapists" and "drug dealers" at the beginning of his campaign, and continuing with his proposal to ban Muslims from all over the world from coming to the United States last December (now morphed into a ban from countries that "sponsor terror", i.e. Muslim countries), together with his attacks on Syrian refugees, not only as "terrorists" but as allegedly impairing America's "quality of life", whatever that means (and we know what it means - remember the segregationists who touted the "Southern Way of Life" before the civil rights era?), Trump has made it clear that immigrants from Latin America, the Middle East, Africa and Asia (whose leaders he also pillories as allegedly cheating on trade and currency issues beyond the scope of these comments), are not welcome in America under his administration.

In speech after speech, he has ranted against alleged "criminal" and "terrorist" immigrants who are "pouring" into the country, allegedly uncontrolled and unregulated, in order to kill American citizens and "destroy our country", "invited" in by an "open borders" administration (which has so far deported 2 million people, more than any other administration in US history).

However, even for those who believe that a return to the white, Christian, Nordics-only immigration policies of our pre-1965 immigration laws would be in America's best interests (such, as, evidently, columnist and Trump-supporter Ann Coulter, who on November 7, suggested that only Americans with four grandparents born in the US should be allowed to vote - which would mean that Donald Trump himself would be ineligible since he had a German-born grandfather and Scottish-born grandmother - see:


one has to ask - what would be the effect on our democracy of imposing these policies?

We have some examples from still-recent history - the Japanese-American internment policies of WW2. While Trump has never endorsed this policy or called for interning American Muslim citizens, ha has stated that we may have to do the "unthinkable" in order to "protect" ourselves. He has suggested that this could include surveillance of Muslim US citizens and their places of worship. What kind of respect for the Constitution does this show?

I could talk about many other aspects of our Constitution which would be in danger under a Trump administration - the right to due process under the 14th Amendment, whose guarantee of birthright citizenship Trump also wants to take away from millions of US born Hispanic, Asian, Middle Eastern and black children, the right to freedom from unreasonable searches and seizures, the right to counsel in immigration proceedings - already under assault from the Obama administration, which is also very arguably violating the Constitutional protections against cruel and unusual punishment of immigrants seeking asylum and related relief - I could go on and on.

But my point is clear, Trump's own stated immigration proposals not only violate the basic rights of immigrants, but they are the gateway to endangering, if not destroying the freedom and democracy of all Americans as well.

I will close by urging all readers who have not yet voted to do so today before it is too late. I voted earlier this morning - since this is a non-political blog, I will keep the information about whom I voted for for president myself completely confidential.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional workers from diverse parts of the world obtain work visas and green cards. His email address is algaselex@gmail.com