The United States has always been a nation of immigrants.  Except for the very small percentage who can claim to be “pure-blooded” members of one of the Native American tribes, most people have a family tree with roots in immigrants.  And these immigrants came to this country for a variety of reasons — some involuntarily, some for economic reasons, some to escape religious persecution, some to escape ethnic persecution, some to escape political persecution, and some just fleeing political strife (whether internal to a given country or a conflict between countries).  Some of these immigrants came from English-speaking area.  Others came from areas that were not English-speaking and arrived with little, if any, fluency in English.  Many immigrants tended to settle in communities with significant populations from their home regions (and, if they did not arrive with much fluency in English, were able to cope by living in a community in which their native tongue was the predominant language).  Today’s immigrants are no different.

However, other than during the early years of this country (when we desperately needed immigrants to fill the areas otherwise occupied by Native Americans), this country has had a love-hate relationship with new immigrants.  In fact, one of the immediate precursors of the Republican Party was the All-American Party, a political party which was opposed to immigration by Irish Catholics.   Each generation, the undesirable group of immigrants was different, but there were defining characteristics of the anti-immigration sentiment.  First, it was almost always the “new group” of immigrants.  Second, the claim was always that this new group would not fit in and would somehow change the country if we didn’t keep them out.  Third, they were almost always predominately non-Protestant — sometimes Jewish, sometimes Muslim, and all too often Catholic.  So the immigrant haters have moved the target of their hatred from the Irish to the Chinese to Eastern/Southern European to Latin Americans to Indochinese and back to Latin Americans.  (And the shame is that some of the modern supporters of this agenda are the descendants of the earlier targets who are undoubtedly rolling over in their graves at the dishonorable conduct of their descendants.) 

This Fourth of July immigration is at the center of the news again.  On the one hand, we have an administration that sees anti-immigrant hatred as a way of winning elections.   And because immigrants have always tended to flock to urban centers (a/k/a blue areas in today’s politics), they are willing to tamper with the accuracy of the census in the hopes of being able to use an undercount of the immigrant population to stack the deck in redistricting in favor of the Republican Party.

For now, it appears that the administration has partially lost this battle.  After last week’s Supreme Court ruling requiring the Commerce Department to reanalyze the “citizenship question” that was/is intended to produce an undercount of immigrants, the Department of Justice informed the lower courts that it would not be pursuing this matter further because they had to send the census forms to the printer.  Since then, the Tweeter-in-Chief has claimed that the matter is still under consideration, and that they will do what is necessary to include the question.  Your guess is as good as mine as to what is really happening, but most attorneys take the duty to be candid with the courts very seriously.  So, most likely, the lawyers at the ground level are telling the courts what is really happening; and Trump’s aides are unwilling to tell him that time has run out.

Of course, twelve months of discussing whether there would be a citizenship question has probably done a lot of damage — aided by disinformation.  For a new immigrant, especially one who is of questionable status, explaining to them that the Census Bureau does not share individualized data with any other agency is a hard process.  Many of them come from areas in which the government is mostly corrupt, and in which bureaucrats can always find a backdoor way to do what they are not supposed to do.  The fact that, in this country, most career bureaucrats are honest and play by the rules is simply a foreign concept.  So these individuals, who are normally have lower response rates to the census will have even lower response rates.  It is going to take a lot of effort directed at the effected populations to overcome this intentional targeting of vulnerable populations to distort the census.  And since it was the political appointees behind this effort; we can’t count on these appointees allowing the Census Bureau to take the necessary steps to fix this mess.  It is going to take grassroots activism to get the truth out to these communities and to create the safe space in which these communities can fully participate in the census.

The other issue is the blatantly illegal policies regarding detention facilities at the border.  And as a lawyer, I don’t use terms like blatantly illegal lightly.  However, the reports coming in — even from government officials — about the conditions at these facilities are beyond shocking.  If those conditions existed in a regular jail holding pre-trial defendants or in a prison holding convicted felons, one would expect an immediate preliminary injunction with a special master appointed to fix conditions that clearly violate the Eighth Amendment bar on cruel and unusual punishment.  If these conditions existed at a facility holding prisoners of war, the International Red Cross would be seeking relief based on violations of the Geneva Convention.  I fully expect in the next several weeks to see federal judges start issuing orders to have this Administration begin complying with basic norms of human decency and constitutional requirements in these facilities. 

Of course, we wouldn’t need such intervention if this Administration had not changed policies to insist on detaining individuals who arrive in the United States seeking asylum.  In the past, such individuals have been released to the custody of friends, relatives, and sponsors pending a hearing on their asylum petitions.  And the vast majority of asylum seekers have shown up for their hearings.  But this administration does not care about its responsibilities under U.S. law or international law regarding those seeking asylum.  It has arbitrarily narrowed its interpretation of the law governing asylum applications to make it harder for certain groups (including women fleeing from domestic violence) to claim asylum.  It has made the decision to slow down the processing of asylum applications.  And it has decided to cram asylum applicants into a tiny number of detention facilities (rather than releasing them to the custody of responsible parties).  All of these policies are intended to discourage immigrants from seeking asylum in the United States because this Administration does not want Hispanics to come here. 

And this policy has not just failed.  It has backfired.  The message in the failing states of Central America (where most of the current refugees comes from) is not that the door has closed, but that the door is closing.  So it is now or never before the Trump’s Administration can fully implement its hateful policies.  Not too surprisingly, the result has been record numbers showing up at the border seeking asylum.  And what would have been inadequate facilities to house a normal number of applicants with the new expanded detention policy is grossly inadequate to implement a similar policy with the current high number of applicants.

In short, the predominant image on the news this week is an ugly snapshot of an ugly side of American policy.  While the anti-immigrant Know-Nothings are sometimes able to join with other factions to seize control of the agenda, they do not represent the majority of this country and push policies that are fundamentally inconsistent with the Constitution of the United States.  It is time to call on, as Abraham Lincoln phrased it, the better angels of our natures to fix the disaster at the border created by President Pumpkinhead.  Then, after we end this national nightmare in 2020, it will be time to sit down with whatever Republicans of good faith remain (and the shame is their behavior over the past three years makes it unclear if any such individuals do remain) to try to modernize immigration law to better fit reality.