To wit: Congress’s power of the purse? Gone. Regardless of how much money Congress appropriates for, say, a border wall or military aid to Ukraine, President Trump has made clear that he’ll ignore the number and pencil in his own.
Congress’s power to regulate commerce with foreign nations? Hijacked by a president who cites bogus “national security” rationales to impose tariffs whenever he likes.
Congress’s duty to “advise and consent” on major appointments? Cabinet and other senior government posts that require Senate confirmation have been atypically littered with “acting” officials instead. In fact, while immigration is ostensibly the president’s signature issue, Trump hasn’t had a single Senate-confirmed director of Immigration and Customs Enforcement since he took office. And though Democratic lawmakers may complain, nothing will change as long as Republicans control the Senate.
Which brings me to the most significant power Trump has stripped from Congress: its lawmaking authority. This is best illustrated by the administration’s actions basically rewriting immigration law wholesale, with nary a peep from GOP legislators.
Sure, on some immigration matters, Congress has relinquished its responsibilities, effectively giving Trump the ability to contort immigration policy as he sees fit.
Consider the “dreamers,” the young immigrants brought here as children who know no other country than the United States. They have long been in a legal limbo. Congress could resolve that limbo swiftly and easily by granting the dreamers permanent legal status and a pathway to citizenship. This would have the support of majorities of voters from both parties, and the Democratic-controlled House has already passed such legislation.
Meanwhile, lawmakers in the GOP-controlled Senate wrung their hands and watched helplessly from the sidelines as Trump announced his decision to kill the Obama-era program that protects the dreamers from deportation. Based on a hearing this week, the Supreme Court appears poised to uphold the president’s decision. Yet, despite claiming to care about the issue, Republicans remain unwilling to act.
Similarly, Congress long ago gave the president authority to set the annual cap on refugee admissions. Not surprisingly, if disappointingly, the Trump administration has used that authority to ratchet the ceiling down to a record low of 18,000. For context, during President Barack Obama’s last year of office, the ceiling was 110,000.
But there are other areas of immigration law on which Congress has acted, definitively and clearly, with legislative language that leaves little room for maneuvering by the executive. The Trump administration has flouted these laws anyway.
Take asylum law.
“Refugees” and “asylum seekers” both refer to immigrants fleeing violence or persecution, but, technically, “refugees” apply for sanctuary while still abroad, and asylum seekers apply while in the country of their destination. Unlike with refugee admissions, there are no legal caps on the number of people who may qualify for and receive asylum. The law does not allow the executive branch to set them, either.
But the Trump administration has effectively set its own limits.
Last year, for instance, the Trump administration tried to ban people from applying for asylum if they crossed between ports of entry — as most asylum seekers are now forced to do, because the administration has severely throttled (or “metered”) the number of people who may apply through a given port of entry per day.
This “asylum ban” was blocked by the courts — because Congress has explicitly said asylum seekers can apply whether or not they entered the United States “at a designated port of arrival.”
“The law is crystal, crystal clear on this,” says Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
With virtually no pushback from Republicans in Congress, Trump administration then implemented a sort of asylum ban 2.0. This one disqualifies asylum seekers who passed through another country on their way to the United States without first applying for asylum there. A separate legal challenge — one among many — is now working its way through the courts.
A host of other changes designed to serve as a backdoor limit on asylee admissions have also been announced in recent weeks. Last week, the administration announced a new processing fee for asylum seekers, which would effectively disqualify families fleeing with nothing but the clothes on their backs. This week, it proposed a rule denying many asylum seekers authorization to work while their cases are being adjudicated, which can take years. This will force more immigrants into the shadows, contrary to Congress’s intentions.
The Trump administration keeps scolding desperate immigrants to shape up and “follow the law.” When will cowardly members of Congress insist that the president do the same?