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What Can President Trump Legally Do To Get 'Tougher' On Immigration?

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Secretary of Homeland Security Kirstjen Nielsen stands alongside President Trump as he tours the border wall between the United States and Mexico in Calexico, Calif., on April 5, 2019. (Saul Loeb/AFP/Getty Images)
Secretary of Homeland Security Kirstjen Nielsen stands alongside President Trump as he tours the border wall between the United States and Mexico in Calexico, Calif., on April 5, 2019. (Saul Loeb/AFP/Getty Images)

Wednesday is Kirstjen Nielsen's last day as secretary of Homeland Security. She is leaving her post after facing mounting pressure amid what the White House calls an immigration "crisis" at the U.S.-Mexico border.

President Trump also withdrew the nomination of Ron Vitiello to head Immigration and Customs Enforcement, saying he wanted to go in a "tougher" direction.

But what is the president able to legally do without Congress to get "tougher" on immigration — and what might that look like?

Stephen Legomsky, law professor at Washington University in St. Louis and former chief counsel of U.S. Citizenship and Immigration Services, part of the Department of Homeland Security, says the manner in which Nielsen is leaving her post speaks volumes.

"The fact that the secretary of Homeland Security, who separated families, locked children up in cages, tear-gassed people who were trying to approach legal ports of entry to apply for asylum, the fact that that person was forced out of office because she wasn't tough enough I think tells you everything you need to know about how far this administration wants to go," Legomsky says.

The Trump administration is likely to face fresh legal challenges if and when it tries to implement more restrictive immigration policies, Legomsky says, adding that despite there being five Republican-nominated justices on the Supreme Court, "even they, I think, will have their limits."

"Since [the administration has] been blocked even on the measures it's taken so far, it does seem to me that trying to go even further would create additional problems," he says.

Here is a breakdown of some areas of immigration policy Trump could try to stiffen, and what Legomsky makes of the likelihood the president will be successful in doing so:

Sending Asylum-Seekers Back To Mexico Before Or Between Hearings

"It's hard for me to imagine how he could legally get any tougher than he has been," Legomsky says of the administration's stance toward asylum-seekers. "In fact, even some of the measures he has taken have been pretty systematically struck down by the courts. That's mainly because the Immigration and Nationality Act, which is the main statute that governs immigration, says very explicitly that any person who arrives in U.S. territory — which includes the border — has the absolute right to apply for asylum. And so many of the measures he's adopted — including the return-to-Mexico policy — seem to impair that right to apply."

Restarting Family Separation

"I don't see how it could pass legal muster," Legomsky says. "A federal district judge has already declared that policy illegal, in part because it violates a court-ordered settlement agreement in the [Reno v. Flores] case between the then-Immigration and Naturalization Service — the old INS — and the plaintiffs. Under that agreement, the children are supposed to be housed with the parents, as long as the parents are not abusive or if there's some other reason to separate them. It's hard to see how he could get away with that if he were to try it again. My guess is the same court would probably enter a similar injunction."

Shutting Down Parts Of The Southern Border

"That issue, I have to say, is a little bit murkier from a legal standpoint, and that's because the designations of the official ports of entry are not contained in any statute or law that Congress has passed," Legomsky says. "Rather they are in a set of homeland security regulations that the Department of Homeland Security does have the right to change. But there are a couple of limitations.

"One is that if he were to close several ports of entry at the same time, then one of the legal issues would be whether he's gone so far that he's effectively undermined Congress's determination of which people are allowed to come in and which ones aren't. So there is that.

"In addition to that, a change that major would almost certainly require notice and comment rulemaking, which means they have to publish or propose notice in the Federal Register, they have to give the public usually 60 days at least to respond, then they have to consider the individual comments — this is a very long, protracted process," he says.


Jill Ryan produced this interview and edited it for broadcast with Tinku Ray and Kathleen McKenna. Jack Mitchell adapted it for the web.

This segment aired on April 9, 2019.

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