Fact Checking Tim Kaine: There is No Constitutional Right for Any Foreign National to Enter the U.S.

Constitution_of_the_United_States,_page_1In Tuesday’s vice presidential debate the issue of resettling Syrian refugees was discussed by the two leading candidates, Democratic nominee Sen. Tim Kaine and Republican nominee Gov. Mike Pence.

Last month, President Obama announced a 30 percent increase in refugee resettlement in FY 2017 (which began Oct. 1), a position that is supported by the Democratic ticket. In criticizing Pence’s call for “suspending the Syrian refugee program and programs and immigration from areas of the world that have been compromised by terrorism,” Kaine asserted that such a policy would violate the U.S. Constitution. According to Kaine, taking such action would be “violating the Constitution by blocking people based on their national origin rather than whether they’re dangerous.”

Sen. Kaine’s assertion is factually inaccurate. There is no affirmative right for any foreign national to enter the United States. Under federal statute, the president has the authority, by proclamation, to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary.

The authority of the president to determine the circumstances under which foreign nationals may enter the United States has been repeatedly upheld by the Supreme Court. In an 1892 case, Ekiu v. United States, the Court held that, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Subsequent Supreme Court decisions have reaffirmed this accepted maxim.

Thus, the president has the authority to bar the entry of foreign nationals for whatever reason he or she might deem appropriate. While the president has the authority to block the entry of people based on national origin, that is not even what is being discussed in this case. Almost nobody is suggesting that we prohibit the entry of Syrian nationals because they are Syrians. Rather, the argument against settling them in the United States is rooted in the rational fact that it is virtually impossible to adequately vet people from Syria to determine, as Sen. Kaine argues, “whether they’re dangerous.” There is broad consensus among top national security experts that we cannot make such determinations with any degree of certainty. And, if we cannot determine who poses a threat, suspending resettlement seems like a far more reasonable option than increasing resettlement.

Immigration in the 2016 Democratic Platform

confetti-red-white-blue-rotator-720x478On the first day of the Democratic convention in Philadelphia, the party released its official platform – a nonbinding document that serves as a guide for Democratic policymaking at every level of government.

Among other things, this year’s platform calls for creating “a pathway to citizenship” for most illegal aliens, taxpayer benefits for illegal aliens, expanding refugee admissions, and an end to enforcement “raids.”

While a more thorough analysis is forthcoming, FAIR has compiled sections of the platform that address immigration below.

Excerpts from the Preamble:

We are proud of our heritage as a nation of immigrants. We know that today’s immigrants are tomorrow’s teachers, doctors, lawyers, government leaders, soldiers, entrepreneurs, activists, PTA members, and pillars of our communities.


The stakes have been high in previous elections. But in 2016, the stakes can be measured in human lives—in the number of immigrants who would be torn from their homes; in the number of faithful and peaceful Muslims who would be barred from even visiting our shores; in the number of allies alienated and dictators courted; in the number of Americans who would lose access to health care and see their rights ripped away.

The section “Fixing our Broken Immigration System” in its entirety:

The United States was founded as, and continues to be, a country of immigrants from throughout the world. It is no coincidence that the Statue of Liberty is one of our most profound national symbols. And that is why Democrats believe immigration is not just a problem to be solved, it is a defining aspect of the American character and our shared history.

The Democratic Party supports legal immigration, within reasonable limits, that meets the needs of families, communities, and the economy as well as maintains the United States’ role as a beacon of hope for people seeking safety, freedom, and security. People should come to the United States with visas and not through smugglers. Yet, we recognize that the current immigration system is broken.

More than 11 million people are living in the shadows, without proper documentation. The immigration bureaucracy is full of backlogs that result in U.S. citizens waiting for decades to be reunited with family members, and green card holders waiting for years to be reunited with their spouses and minor children. The current quota system discriminates against certain immigrants, including immigrants of color, and needs to be reformed to the realities of the 21st century. And there are real questions about our detention and deportation policies that must be addressed.

Democrats believe we need to urgently fix our broken immigration system—which tears families apart and keeps workers in the shadows—and create a path to citizenship for law-abiding families who are here, making a better life for their families and contributing to their communities and our country. We should repeal the 3-year, 10-year and permanent bars, which often force persons in mixed status families into the heartbreaking dilemma of either pursuing a green card by leaving the country and their loved ones behind, or remaining in the shadows. We will work with Congress to end the forced and prolonged expulsion from the country that these immigrants endure when trying to adjust their status.

We must fix family backlogs and defend against those who would exclude or eliminate legal immigration avenues and denigrate immigrants. Those immigrants already living in the United States, who are assets to their communities and contribute so much to our country, should be incorporated completely into our society through legal processes that give meaning to our national motto: E Pluribus Unum.

And while we continue to fight for comprehensive immigration reform, we will defend and implement President Obama’s Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans executive actions to help DREAMers, parents of citizens, and lawful permanent residents avoid deportation. We will build on these actions to provide relief for others, such as parents of DREAMers. We will support efforts by states to make DREAMers eligible for driver’s licenses and in-state college tuition. We will invest in culturally-appropriate immigrant integration services, expand access to English language education, and promote naturalization to help the millions of people who are eligible for citizenship take that last step.

We believe immigration enforcement must be humane and consistent with our values. We should prioritize those who pose a threat to the safety of our communities, not hardworking families who are contributing to their communities. We will end raids and roundups of children and families, which unnecessarily sow fear in immigrant communities. We disfavor deportations of immigrants who served in our armed forces, and we want to create a faster path for such veterans to citizenship. We should ensure due process for those fleeing violence in Central America and work with our regional partners to address the root causes of violence. We must take particular care with children, which is why we should guarantee government-funded counsel for unaccompanied children in immigration courts. We should consider all available means of protecting these individuals from the threats to their lives and safety—including strengthening in-country and third-country processing, expanding the use of humanitarian parole, and granting Temporary Protected Status.

We will promote best practices among local law enforcement, in terms of how they collaborate with federal authorities, to ensure that they maintain and build trust between local law enforcement and the communities they serve. We will also vigorously oversee any programs put in place, to make sure that there are no abuses and no arbitrary deportation programs. We will establish an affirmative process for workers to report labor violations and to request deferred action. We will work to ensure that all Americans—regardless of immigration status—have access to quality health care. That means expanding community health centers, allowing all families to buy into the Affordable Care Act exchanges, supporting states that open up their public health insurance programs to all persons, and finally enacting comprehensive immigration reform. And we will expand opportunities for DREAMers to serve in the military and to then receive expedited pathways to citizenship.

We will fight to end federal, state, and municipal contracts with for-profit private prisons and private detention centers. In order to end family detention, we will ensure humane alternatives for those who pose no public threat. We recognize that there are vulnerable communities within our immigration system who are often seeking refuge from persecution abroad, such as LGBT families, for whom detention can be unacceptably dangerous.

We reject attempts to impose a religious test to bar immigrants or refugees from entering the United States. It is un-American and runs counter to the founding principles of this country.

Finally, Democrats will not stand for the divisive and derogatory language of Donald Trump. His offensive comments about immigrants and other communities have no place in our society. This kind of rhetoric must be rejected.

An excerpt from the section “Securing Universal Health Care”:

Democrats believe that all health care services should be culturally and linguistically appropriate, and that neither fear nor immigration status should be barriers that impede health care access.

An excerpt from the section “Americas”:

The Americas are a region of singular strategic, economic, and cultural importance and opportunity for the United States. Democrats reject Donald Trump’s proposal to build a wall on our southern border and alienate Mexico, a valuable partner. We will instead embrace our neighbors and pursue strong, fruitful partnerships across the region, from Canada to Latin America and the Caribbean. We will bolster democratic institutions, promote economic opportunity and prosperity, and tackle the rise of drugs, transnational crime, and corruption. We will strengthen the U.S.- Caribbean regional relationship through economic development and comprehensive immigration reform. And we will build on our long-term commitment to Colombia and work with Central American countries to stabilize the Northern Triangle.

An excerpt from the section “Refugees”:

The world is experiencing a major refugee crisis with more than 60 million people displaced as a result of conflicts in the Middle East, Africa, and Eastern Europe. We support President Obama’s call for an international summit to address this crisis so that every country assumes its responsibility to meet this humanitarian challenge. While Donald Trump proposes banning Muslim refugees, we will look for ways to help innocent people who are fleeing persecution while ensuring rigorous screening and vetting.

Immigration in the 2016 GOP Platform

On the first day of the GOP convention in Cleveland, the party released its official platform – a nonbinding document that serves as a guide for Republican policymaking at every level of government.

This year’s platform calls for an immigration system that serves the national interest of the United States, and contains strong stances on amnesty, interior enforcement, and border security.

While a more thorough analysis is forthcoming, FAIR has compiled sections of the platform that address immigration below.

The section “Immigration and the Rule of Law” in its entirety:

Our party is the natural home for those who come in search of freedom and justice. We welcome all to the Great Opportunity Party.

The greatest asset of the American economy is the American worker. Our immigration system must protect American working families and their wages, for citizens and legal immigrants alike, in a way that will improve the economy. Just as immigrant labor helped build our country in the past, today’s legal immigrants are making vital contributions in every aspect of national life. Their industry and commitment to American values strengthens our economy, enriches our culture, and enables us to better understand and more effectively compete with the rest of the world. We are particularly grateful to the thousands of new legal immigrants, many of them not yet citizens, who are serving in the Armed Forces and among first responders. Their patriotism should encourage all to embrace the newcomers legally among us, assist their journey to full citizenship, and help their communities avoid isolation from the mainstream of society. We are also thankful for the many legal immigrants who continue to contribute to American society. To that end, we both encourage the preservation of heritage tongues and support English as the nation’s official language, a unifying force essential for the advancement of immigrant communities and our nation as a whole.

America’s immigration policy must serve the national interest of the United States, and the interests of American workers must be protected over the claims of foreign nationals seeking the same jobs. With all our fellow citizens, we have watched, in anger and disgust, the mocking of our immigration laws by a president who made himself superior to the will of the nation. We stand with the victims of his policies, especially the families of murdered innocents. Illegal immigration endangers everyone, exploits the taxpayers, and insults all who aspire to enter America legally. We oppose any form of amnesty for those who, by breaking the law, have disadvantaged those who have obeyed it. The executive amnesties of 2012 and 2014 are a direct violation of federal law and usurp the powers of Congress as outlined in Article I of the Constitution. These unlawful amnesties must be immediately rescinded by a Republican president. In a time of terrorism, drug cartels, human trafficking, and criminal gangs, the presence of millions of unidentified individuals in this country poses grave risks to the safety and sovereignty of the United States. Our highest priority, therefore, must be to secure our borders and all ports of entry and to enforce our immigration laws.

That is why we support building a wall along our southern border and protecting all ports of entry. The border wall must cover the entirety of the southern border and must be sufficient to stop both vehicular and pedestrian traffic. We insist upon workplace enforcement of verification systems so that more jobs can be available to all legal workers. Use of the E-verify program — an internet-based system that verifies the employment authorization and identity of employees — must be made mandatory nationwide. We reaffirm our endorsement of the SAVE program — Systematic Alien Verification for Entitlements — to ensure that public funds are not given to persons not legally present in this country.

We demand tough penalties against those who engage in identity theft, deal in fraudulent documents, and traffic in human beings. The Department of Homeland Security must use its authority to keep dangerous aliens off our streets and to expedite expulsion of criminal aliens. Gang membership should be a deportable offense. Any previously deported illegal alien who continues to show a lack of respect for our borders and rule of law must be penalized. This is why we support stiffer penalties, such as a mandatory minimum sentence of five years, for any illegal alien who illegally re-enters our nation after already having been deported.

Because “sanctuary cities” violate federal law and endanger their own citizens, they should not be eligible for federal funding. Using state licenses to reward people in the country illegally is an affront to the rule of law and must be halted. In light of both current needs and historic practice, we urge the reform of our guest worker programs to eliminate fraud, improve efficiency and ensure they serve the national interest.

In light of the alarming levels of unemployment and underemployment in this country, it is indefensible to continue offering lawful permanent residence to more than one million foreign nationals every year. The Supreme Court has correctly recognized that states have the constitutional authority to take steps to reduce illegal immigration. We condemn the Obama Administration’s lawsuits against states that are seeking to reinforce federal law. We support the right of the states to enact laws deterring illegal aliens from residing within their states.

From its beginning, our country has been a haven of refuge and asylum. That should continue — but with major changes. Asylum should be limited to cases of political, ethnic or religious persecution. As the Director of the FBI has noted, it is not possible to vet fully all potential refugees. To ensure our national security, refugees who cannot be carefully vetted cannot be admitted to the country, especially those whose homelands have been the breeding grounds for terrorism.

An excerpt from the section “Confronting the Dangers”:

While immigration is addressed in more detail elsewhere, we cannot ignore the reality that border security is a national security issue, and that our nation’s immigration and refugee policies are placing Americans at risk. To keep our people safe, we must secure our borders, enforce our immigration laws, and properly screen refugees and other immigrants entering from any country. In particular we must apply special scrutiny to those foreign nationals seeking to enter the United States from terror-sponsoring countries or from regions associated with Islamic terrorism. This was done successfully after September 11, 2001, under the National Security Entry-Exit Registration System, which should be renewed now.

An excerpt from the section “The Tenth Amendment: Federalism as the Foundation of Personal Liberty”:

The Constitution gives the federal government very few powers, and they are specifically enumerated; the states and the people retain authority over all unenumerated powers. In obedience to that principle, we condemn the current Administration’s unconstitutional expansion into areas beyond those specifically enumerated, including bullying of state and local governments in matters ranging from voter identification (ID) laws to immigration…We pledge to restore the proper balance and vertical separation of powers between the federal government and state governments — the governments closest to, and most reflective of, the American people.

Immigration as a Campaign Issue

The soon-to-be-official presidential nomination of Donald Trump has provoked an outpouring of negative commentary by immigration boosters. It appears that there is likely to be a heated debate around immigration during the campaign. This offers a great learning opportunity for the public if it does not degenerate into emotional sound bites.

Often the discussion of the issue is misleading and, apparently, designed to confuse the public. An example is a July 18 discussion on the CNBC website entitled “The front line in a Trump immigration war: State economies.” ()

As the title implies, the discussion suggests that the economies of the states with the largest numbers of illegal aliens would suffer the greatest impact from a renewed enforcement of the nation’s immigration law by leading to deportations of illegal residents. It quotes a member of the Federal Reserve Bank of Dallas as saying, “”It’s very difficult to imagine the economy functioning without this workforce.”

That comment suggests that the official believes that the US. economy should be permanently dependent on the exploitation of unskilled, exploitable illegal alien workers. It also ignores the effect of a gradual reduction in the size of the illegal population through deportation and denial of jobs leading to higher wages that would attract unemployed and underemployed legal workers – some of them legal resident immigrants.

The CNBC article also demonstrates the difficulty of conducting a serious debate over the immigration issue. As soon as the prospect of a disruption of the economy from deportations was portrayed, the discussion changed gears to legal immigration. The article continued: “U.S. innovation can also get a boost from immigrant college graduates.” The implication is that the Trump immigration policy’s focus on enforcement would also curtail legal immigration. That is a completely fictitious implication.

It is abundantly clear that a major effort will be needed by FAIR and fair-minded analysts during the campaign to keep the pundits objective and honest in their commentary about the immigration issue in the presidential debate.  

With Pen and Phone Gone, Nothing Left but Mouth

penandphoneWhen the Supreme Court split 4-4 in US v. Texas on June 23, President Obama was dealt a setback. Gone was his claim to expansive – indeed limitless – power to give aliens benefits regardless of the law.  The injunction remains as the trial on the merits will now resume in a district court in Brownsville, Texas, where the Judge Andrew Hanen will continue his battle with refractory and obstructionist attorneys from the Department of Justice.

President Obama’s pen and phone were used to create new wholesale classifications of aliens who not only would never fear deportation, but would get jobs and benefits. The Supreme Court grabbed his Mont Blanc and iPhone, and left him with his bullhorn.

Stripped of Pen and Phone, Obama’s putting his mouth into overdrive. Yesterday we were treated with yet another boring lecture on how awful Americans are for wanting immigration controlled and borders enforced.

Speaking in Canada, Obama lectured: “We’ve had times throughout our history where anti-immigration sentiment is exploited by demagogues,” he said at a presser with foreign leaders outside the U.S. “America is a nation of immigrants. That’s our strength. Unless you are a Native American, somebody, somewhere in your past showed up from someplace else, and they didn’t always have papers.”

This sort of condescension – even while overseas — is now commonplace from Obama.  Blunt translation to the American people: “Sit down and be quiet.”

This is offensive. What kind of leader regularly demeans, attacks and criticizes the people he is supposed to represent in front of a foreign audience? Only a powerless one, reduced to lecturing out of frustration. Not since Jimmy Carter’s late-term lectures have we heard this sort of arrogance that demeans the honest and heart-felt feelings of the people.

If the president cannot bring himself to enforce the laws Congress and previous presidents have passed, then why did he take the oath in the first place? Sacrificing one’s moral and legal duty as chief executive in favor of degrading lectures, smears and excuses is no way to carry out the most basic duties of the office.