By Partha Chakraborty-
It has not been seven days since President Donald Trump took the oath. Since Day 1 we have faced an avalanche of Executive Orders aiming to further various promises on the campaign trail in a remarkable display of “shock and awe.” None gets my attention more than the ones related to immigration and citizenship.
I should know and care. I came here as a graduate student in 1995. In my visa interview, I was asked to itemize the reasons I would go back to India after my studies. I stumbled but still got the nod. I found it odd that a country would spend untold amounts to train a foreigner at an Ivy League university, and would still insist he returned immediately. In 1999, on my birthday, I was hauled to the Human Resources at a company and was fired – my legal papers were taking too long to arrive in a bureaucratic logjam. In my exit interview, I was reminded that I had thirty days to leave the country; in a sheer stroke of luck, papers arrived the same day, and I was reinstated without complications. For ten months starting in 2006, I chose to leave the country, ‘self-deported,’ because of an emerging complication with the legality of my stay; the fault this time was all mine. I left my newborn son and wife in New York, and, God as my witness, it was traumatic for all of us.
In February 2018, twenty-two and a half long years of first entering the country, maintaining legal status consistently if I was staying in the country, staying out of trouble always, paying taxes, and raising a family, I was naturalized. Being an American is a privilege that makes every bit of it worth the wait.
In everyday life I interact with, and critically depend on, immigrants who have gone through more hardships than I did. Their ancestors may have come in as Braceros, helping the US through the years of World War II, and were targets of Operation Wetback. They may be children of the Boat People with vivid memories of the killing fields they left behind, barely alive. They may have paid coyotes their entire life’s savings, and then some, for the passage due north; once here they kept their heads low and hopes up till amnesty programs made their dream real, many overstayed their visa. All are contributing members of the community, starting small businesses, and taking risks to build an American dream – restaurants, salons, car repair shops, gas stations, motels, corner bodegas, and everything in between. Whenever they came, and however far they traveled to get here, they paved a path that brought in more of their stock – women and men who were not afraid to work every single day for twelve or more hours in whatever niche they found a good fit, and even when they truly did not need to work for a single day more.
I have discussed extensively Trump’s orders, especially those related to immigration and citizenship, in this circle of friends. What follows here comes off those animated conversations.
Trump’s Executive Order, “Protecting the Meaning and Value of American Citizenship,” denies American Citizenship to children of mothers who are present unlawfully or lawfully present with temporary status (e.g., under tourist, student, or work visa) and whose fathers are neither citizens nor permanent residents at the time of birth. Trump’s order needs to be viewed in conjunction with US v. Wong Kim Ark (1898). In a 6-2 decision the Supreme Court granted birthright citizenship to Wong Kim Ark, born in 1873 in the US to parents who were Chinese citizens but not employed in a diplomatic or official capacity of the Emperor of China, and hence were subject to jurisdictions of the United States at the time of his birth. If Trump’s order were to pass muster, we will have to contend that a mother in the country under a temporary status, or not lawfully here, is not subject to the US jurisdictions, unless the father is a citizen or a permanent resident. It is simply outrageous and patently indefensible to claim such a thing. In no time U.S. District Judge John Coughenour issued the temporary order openly wondering “how a member of the bar could state unequivocally that is a constitutional order.” The case is surely headed to the Supreme Court where an order striking it down is most likely.
Nobody I spoke with is remotely concerned about the Order, per se. The idea for this order might just have been the shock value, a statement to elicit rabid counter-reactions, thereby missing the goalpost.
Three other Executive Orders, each reasonably benign, even needed, on their own, but collectively portend something ominous caught our eyes. Trump declared a “National Emergency at the Southern Border,” directing his Secretary of Defense to deploy uniformed services at the border as well as asking the Secretary of the Department of Homeland Security to finish a border wall, among others. In an accompanying order, the President tasked the Secretary of Defense to “deliver to the President a revision to the Unified Command Plan that assigns United States Northern Command (USNORTHCOM) the mission to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.” In a separate order, the President designated Drug Cartels and other transnational organizations (e.g., Tren de Aragua or TdA, La Mara Salvatrucha or Ms-13) as Foreign Terrorist Organizations and Specially Designated Global Terrorists. The order further declared a national emergency to deal with them and tasked competent authorities “to make operational preparations regarding the implementation of any decision” the President may make to invoke the “Alien Enemies Act”.
Nobody can have much to quibble against any, individually. There is a clear and present emergency in the Southern border. A recent study by the New York Times found that as many as fourteen million people are without any legal status (60% or about 8.25 million) or with temporary protection (40% or about 5.5 million). Among the latter, 2.6 million are waiting on asylum claim, 1.1 million granted Temporary Protected Status under previous administrations, 540,000 are protected under DACA that President Trump has vowed to continue, 940,000 have started their CBP One application, 77,000 Afghans and 240,000 Ukrainians, and the rest. The first group, i.e., those without a legal status, includes 6.3 million for whom removal cases are pending, 1.4 million who received final deportation notices, 655,000 who have criminal charges or convictions, and the rest. Out of these 8 or so million without legal status, only 39,000 are in ICE custody. Fraud involving asylum claims is rampant and egregious; there is a cottage industry involving NGOs, many funded generously by the US, that aid and abet the process. In so doing they are no less complicit than the coyotes and the cartels in the plight of migrants. Cartels perpetuate campaigns of terror and senseless killings inside Mexico, and at times, across the border. They flood our country with drugs that maim and kill millions. Not only that Cartels, TdA, MS-13 and others traffic humans across the border while subjecting migrants to brute force, assassination, rape, and other methods of subjugation. A forceful response to the Cartels, MS-13, TdA, et. al., will need personnel who are trained to carry out orders decisively and with lethal finality if needed, and therefore it is quite advisable to deploy uniformed forces. Experiences in Israel point to the benefits, as well as weaknesses, in building a wall to keep away unwelcome visitors. With advanced surveillance capabilities, a Border Wall can truly stanch the flow of people and contraband across.
What I am afraid of are unknown knowns and disastrous consequences thereof.
Trump promises the biggest deportation program in history; his Border Czar Tom Homman wants to start with the ones that have criminal convictions, moving on to those who already received final deportation notices, and so on. A full implementation to remove eight million people without status will dwarf Operation Wetback of Eisenhower administration. US Agents enforcing Operation Wetback came knocking on people’s doors – farms, schools, motels, movie theaters, anywhere and everywhere – and demanded to be shown paperwork proving legal residency. People who did not have the papers handy were immediately rounded up, in many cases in the face of confusion and desperation of US-born children at home. People were not given a chance to obtain proof of residency, thereby rounding up many US citizens in the process. People thus apprehended were deported by buses, by ships, and by plane; the long hand of the Feds reached all the way to Chicago and the Midwest starting from farms in California and Texas. Migrants died of dehydration when dropped off at remote locations inside Mexico, US families were devastated, and communities torn apart; especially for US citizens caught up in the sweeps, the long road back was a most arduous one mired in bureaucratic apathy as was most common.
All of that for a mere 1,074,277 “returns” in 1954, though later estimates put the tally at “closer to half that.” Repeat offenders accounted for 20% of returns in later years, meaning the deported came back before being rounded up again. By the time the “Operation” ended in five years, the number of migratory laborers already went up by 1 million.
2025 is no 1954. During the Eisenhower administration, almost all illegal immigrants were from Mexico, and Mexico was more than happy to take them back. During that time migrants lived in mostly segregated neighborhoods near the southern border or near major cities. None of that is true. Only 4 million of the estimated 14 million are from Mexico, rest are from Central and South American nations torn apart in internal strife, none interested in taking people back as Colombia recently showed. Clusters of migrants are in friendly cities, counties and states that have laws on the books blocking cooperation with US immigration authorities. Unlike in 1954, deportation cannot happen without a court hearing for those with some temporary protection or status, unless the Administration finds a way to bypass due process.
Trump has a plan to do just that. That may be why he floated the idea of invoking the Alien Enemies Act (1798) – to deport known or suspected immigrant gang members without a court order. The 1798 law was part of a package of four laws called “Alien and Sedition Acts;” only one remains in the books. That law was used against British nationals in 1812, against Central Powers during World War I, against Germans and Italians in World War II. President Roosevelt used authorities vested by the Act in issuing Executive Order 9066 that interned Japanese Americans. In Ludecke v. Watkins (1948) the US Supreme Court found that the Act allowed for detainment beyond the time hostilities ceased, but only until an actual treaty was signed with the hostile nation.
In his first term, Trump wanted to use the military to force drug cartels out of their strongholds inside Mexico, without the consent of the Mexican government, even asking privately about shooting missiles into Mexican hinterlands. Designating Cartels as Terrorist organizations brings that within the realm of possibility. In an unknown known eventuality, Mexico rises against a heavy-handed approach resulting in misinterpretations, mistakes even. This will give Trump an easy excuse to declare Mexico as a hostile nation and invoke the Alien Enemies Act to force out migrants.
There will be blood, as Trump himself alluded to in a campaign rally.
It is possible that Trump’s opening gambit on the Southern border – threat of US military use inside Mexico, and the promise to use the Alien Enemies Act to flush out illegal aliens inside the US – will work. It may force the Mexican government to achieve substantive gains on two fronts – close her own southern borders, and cooperate better with the US to stanch the flow of Fentanyl, and other drugs, into this country. Mexico gets rid of the Cartels, and the tax Cartels impose on law-abiding citizens. We get rid of the unchecked flow of trafficked humans, drugs, and opioids inside our borders, as well as MS-13 and TdA. In return, the US corporations can find a more hospitable operating base inside Mexico as they pivot out of China – we establish a new right-shoring destination in our hemisphere. This does look like a clear win-win to me. True, it does not win Trump the Good-Neighbor award, but I reckon that never tickled his fancy in the first place.
A Grand Bargain on the Southern border will be one of Trump’s masterstrokes, if and when. His opening moves are ballsy, to be technical, but he should be careful. If he miscalculates, he will make us revisit the inhumanity of Operation Wetback. But if he succeeds, he will achieve a feat that scores of administrations – both Republican as well as Democratic – did not even dream of.
Mr. President: Go for a Grand Bargain on the Southern Border. Build a wall if you must. But, do not burn down the House. Pretty Please.