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Can Politicians Really Ban Immigrants?

The first television commercial presented by Donald Trump, a presidential candidate hopeful running on the Republican ticket, hit the airwaves in early 2016. As expected, the imagery and message used in the commercial spot remind viewers of the controversial message that Trump has conveyed since he announced his intentions of becoming President of the United States: to forcefully restrict immigration.

Trump first took aim at Mexican immigrants, followed by calling for an outright ban on Muslim immigration to the U.S. These polemic messages have been received not only with shock but also curiosity, prompting people to ask whether Trump, or any other politician for that matter, can actually ban immigration? Here, respected San Diego immigration lawyers answer that question.

In the U.S., immigration matters are handled by the U.S. Citizenship and Immigration Service (USCIS). This federal agency is enacted by law and managed by means rulemaking, which means their purpose and operation are set by legislation and the democratic process.

Above anything, any immigration measures enacted by the government must be constitutional. It is important to remember that the U.S. is a nation formed by immigrants, and the Constitution reflects this historical fact by not placing specific restrictions on immigration, only guidelines on the naturalization of foreigners.

Why did the Founding Fathers pay so little attention to immigration in their framing of the Constitution? Probably because it seemed natural to them that independence should be granted across the Americas because they were populated by immigrants.

With Trump calling for massive deportations and ethnic exclusions, it is appropriate to review the plenary power doctrine of the Constitution, which does give Congress extraordinary powers over immigration laws in the U.S. This doctrine may allow Trump, if elected, to attempt Executive Action and sell it to Congress insofar as restricting immigration to the point of prohibition. This has actually happened in the past with the Chinese Exclusion Act, which failed to work as intended and was eventually repealed.

In theory, legislation could be enacted to greatly limit immigration, but an outright ban would face such opposition that prohibition can be practically considered to be impossible.

If you have other questions or need assistance with immigration matters like achieving permanent residency through work or family immigration, don’t hesitate to give KS Visa Law a call at (858) 874-0711. We offer free immigration consultations!

April 2024