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Donald Trump could severely restrict immigration without any help from Congress

"You get a tariff, and you get a tariff, and you get a tariff, and …"
"You get a tariff, and you get a tariff, and you get a tariff, and …"
Spencer Platt/Getty Images

In many ways, a Donald Trump administration would resemble that of any other Republican. He'd push Congress to slash taxes on the rich, for example, and with Republicans controlling both chambers, he'd likely succeed.

But Trump is not a typical Republican. On two key issues, he's deviated strongly from past policy statements by Republican nominees: immigration and trade.

He's laid out a very ambitious plan to deport millions of unauthorized immigrants and restrict legal migration as well. And he's spoken of wanting a big tariff on all Chinese imports, with a rate as high as 45 percent. (Though he's backed away from that giant figure and even denied bringing it up, despite there being an audio recording.)

Trump cannot enact his entire immigration and trade agendas by presidential fiat. He'd need Congress to go along for the really big stuff; after all, a border wall isn't going to fund itself, even if he says Mexico is going to foot the bill. But experts say he could still do an alarming amount to ramp up deportations, clog up the legal immigration process, and target Chinese imports, without changing any laws or needing Congress in any way.

President Trump could ramp up deportations significantly

deportation protest
Yeah, Trump would do the opposite of this.
David McNew/Getty Images

As the Obama administration has demonstrated, the president has an awful lot of discretion when it comes to deciding not to deport people. In Obama's first term, deportations were at record highs, hitting 409,849 in fiscal year 2012 (October 2011 through September 2012). But in his second term, the number has declined drastically, to only 235,413 in fiscal year 2015. While his issuance of formal protection from deportation to some unauthorized immigrants has sparked a court challenge, he nonetheless was able to nearly halve the rate at which people were getting kicked out.

It's slightly harder for an administration to use its powers to dramatically increase the number of people being deported, just because there are budgetary constraints. Given the budget that Immigration and Customs Enforcement (ICE) and other federal agencies have to work with, most experts I spoke with said that the maximum annual deportation rate under the current funding levels is only slightly higher than the Obama administration's peak.

For instance, Doris Meissner, a former commissioner of the now-defunct Immigration and Naturalization Service (the predecessor to ICE and a couple of other agencies) and current senior fellow at the Migration Policy Institute, says she thinks the absolute rate is "tens of thousands more, maybe 100,000 more" than the 410,000 peak under Obama.

"To do the kind of sweeping deportations that Trump is talking about would require a lot more money, and it would have to be appropriated," she says.

It's true: Trump would likely need a deportation rate well above 510,000 a year to shrink the unauthorized population to the size he wants. But that number is still large and terrifying. Suppose Hillary Clinton would keep the rate at 235,000 a year but Trump would raise it to 510,000. Over a term in office, that's over a million more people deported by Trump than by a Democratic president. Even if you only assume he gets to the 410,000 Obama rate, it's 700,000 additional deportations over four years.

Trump also pledges to cut off federal grants to "sanctuary cities," municipalities that decline to pursue undocumented immigrants. He could potentially also do this on his own, Ali Noorani of the National Immigration Forum says, by ordering a regulatory change that makes full cooperation with federal immigration laws a condition for federal grant programs.

Trump could also make it harder to come to the US legally

Database Aids Immigration Inspectors' Work
They've all come to look for Amerrrrrrrrica.
Joe Raedle/Getty Images

Perhaps surprisingly, Meissner says that Trump could have more luck restricting legal immigration. His plan, for example, calls for a moratorium on green cards for "foreign workers"; it's unclear whether he means just people getting green cards for the express purpose of working in the US (about 16 percent of green card recipients per year) or people getting green cards for any reason, like family unification, who also intend to work here.

Either way, though, Trump could direct the Department of Homeland Security to clog up the works and slow or outright freeze green card issuance. Indeed, Meissner says, he could severely reduce legal immigration altogether if he really wanted to, keeping hundreds of thousands of people out of the US every year.

"When he talks about a moratorium, the reference really is a moratorium on legal immigration across the board," she explains. "We take about a million people a year legally. The restrictionist proposal has generally been, 'Let's fall way down to 200,000 or 300,000 a year.' That really would involve not only not issuing green cards but not issuing visas abroad to people in the queue to come to the US. I think a president could do that for a while." It'd spark lawsuits, she concedes, but that doesn't mean it wouldn't work for a while.

That runs against the common restrictionist talking point that we shouldn't reward people who've entered illegally out of the respect to those who "stood in line." "People getting green cards are the ones who have stood in line!" Meissner notes.

Trump also targets a few legal immigration programs specifically. He wants to terminate the J-1 visa jobs program, which lets researchers, academics, and students stay in the US temporarily. Noorani says that while Trump would need Congress to formally eliminate the program, he could also unilaterally stop issuing J-1 visas without any congressional input at all.

Trump also wants to increase the "prevailing wage" for the H-1B program, which admits highly skilled workers temporarily. He says he wants to do this because increasing the wage that foreign workers must be paid makes them less attractive to hire and discourages employers from seeking out the visas.

"Trump could probably increase prevailing wages for H-1Bs by changing the current definition of prevailing wage or how it's calculated without congressional approval," Noorani says. "But he would need to go through rulemaking, and there would need to be a justification for making this change that could survive a legal challenge."

Again, the courts may stop Trump after a while. But he can pursue his grudge against H-1Bs all the same.

It's important not to exaggerate how much of Trump's immigration platform is implementable by the president alone. He wants to triple the number of border patrol agents, which requires money from Congress. He wants to increase a variety of visa fees and impound remittance payments to Mexico, so as to make "Mexico" pay for a border wall; fees currently can't be higher than the amount required to pay for processing of the form they're associated with, so that would require congressional action, and just stealing people's remittances is arguably a violation of the Fifth Amendment's Takings Clause. And ending birthright citizenship, as Trump also suggests, would require a constitutional amendment.

But the point remains that Trump could do a lot to make life harder for both undocumented and legal immigrants, all by himself.

Trump could probably slap (some) tariffs on China by himself

EU Shoe Tariffs Will Affect 70,000 Chinese Jobs
Trump could screw over Chinese manufacturing workers, like this guy working in Chongqing in 2006.
China Photos/Getty Images

The Trump campaign is insistent that the Chinese government is giving its country's exporters an unfair leg up against American competitors. It's manipulating its currency, Trump alleges (which was definitely true in recent years but is less true today), and it's providing free rent, utilities, raw materials, below-market loans, and all kinds of other giveaways to export-oriented companies. All this, he suggests, calls for retaliatory action from the US.

The trade experts I asked confirmed that, in given circumstances, Trump can order that retaliation all by himself. "If US companies bring so-called 'safeguard' or 'market disruption' cases against imports from China, the president has almost unlimited latitude to fashion a remedy, tariffs, quotas, whatever," Gary Hufbauer, a senior fellow at the Peterson Institute for International Economics and an expert on trade law, says. "The International Trade Commission will give advice, but the president can do what he wants."

A "safeguard" case means that an American industry is in serious, imminent danger due to intense competition from imports, and is seeking relief. This is the pretext under which the Bush administration unilaterally imposed tariffs on imported steel back in 2002 — without congressional action.

But tariffs can be imposed for other reasons as well. The US can apply "countervailing duties," which are meant to counter subsidies of the kind that Trump attacks, and "anti-dumping" duties, which are meant to counter imports that are selling for less abroad than in their home market (that are being "dumped" overseas).

These, Hufbauer says, are a little more complicated, as they require a determination from the Commerce Department, which is supposed to be insulated from political pressure. But the key qualifier is "supposed to be."

"By choosing the top-level people in the Commerce Department," Hufbauer says, "the president can indirectly shape the outcome of these cases."

Currently, countervailing duties aren't imposed against countries for currency manipulators. But the Commerce Department could change its mind on that. "The president could instruct the Commerce Department to rewrite the regulations to make it subject to a countervailing duty," Hufbauer says. "That would be challenged in the US courts and the [World Trade Organization], and the regulation would probably not survive. But the litigation could well take two years."

The WTO is a big restraint here. A big across-the-board tariff, Tufts University professor and WTO expert Joel Trachtman says, "would be likely to violate WTO law, and result in WTO-authorized retaliation by China. The likely result would be a trade war that would hurt both sides." And indeed, the WTO ruled against the steel tariffs the Bush administration imposed, and authorized the European Union to retaliate with tariffs of its own; eventually Bush backed down.

Trump's powers on trade aren't unlimited. He can't do a blanket tariff on all Chinese goods on his own. Trachtman is more insistent than Hufbauer that Trump would need the International Trade Commission — a nominally independent federal agency — on his side to slap any tariffs or duties on China. But he agrees with Hufbauer that there is "room to manipulate" determinations by the Commerce Department to put tariffs in place, even if they wind up getting struck down.

As with immigration, Trump won't be able to implement his entire trade agenda through presidential fiat. But he can probably find a way to tax Chinese imports, at least on some products, on his own, if only for a little while.