Immigration is the defining and most polarizing issue in this presidential campaign. Donald Trump has called for building a wall along our border with Mexico and has referred to Mexicans as murderers and rapists. He has called for a total ban on Muslims from entering the country and implicated American Muslims as complicit in terrorism.
Hillary Clinton, by contrast, promotes racial diversity and has called for the creation of a pathway to citizenship for undocumented immigrants.
Together, the candidates embody the forces that have long shaped our country’s history — those that seek to welcome and integrate America’s newcomers and those that seek to block and expel them. But while many of Trump’s policy proposals are patently unconstitutional, Clinton has yet to offer a comprehensive plan for reforming the immigration system to ensure it comports with constitutional principles of fairness and due process.
Among the most patently unconstitutional policies Trump has proposed is an immigration ban on Muslims entering the United States. In the history of our country the government has never imposed an immigration ban on the basis of religion. And there is a reason for that. A Muslim ban would violate the Establishment Clause of the First Amendment, which explicitly prohibits the government from preferring any one religion over another.
Trump has also proposed stripping citizenship from children born in the United States to undocumented parents. His reactionary proposal violates the 14th Amendment, which guarantees citizenship to everyone born on U.S. soil. This right was established in the aftermath of the Civil War. Trump wants to revoke it, thereby tossing away 150 years of constitutional history, to create a modern-day caste system, and institute a new class of “aliens” in America.
While Clinton’s platform is much more immigrant-friendly, she has yet to offer a comprehensive plan to ensure that every immigrant facing deportation has a fair day in court and is treated humanely in accordance with the Constitution.
Since 2014, the Obama administration has detained Central American families in mass detention facilities, locking up many for more than a year. Clinton has said she wants to end mass family detention. That’s a good start, but she would also need to close all family detention facilities, halt the procurement of new facilities for family detention, release all detained families, stop placing families in expedited removal, and prioritize community-based alternatives to locking up families who present no threat to public safety.
Clinton has also pledged to close private immigration detention centers. Seventy-three percent of immigration detention beds are run by for-profit prisons. The Office of Homeland Security is currently evaluating whether it should follow the example of the Bureau of Prisons and phase out use of private prisons. Profiteering should have no place in any detention system, and Clinton should stop using private prisons and county jails for the detention of immigrants.
Clinton has also yet to address the question of detaining immigrants for prolonged periods without a hearing. Two U.S. courts of appeals have ruled that immigrants are entitled to a bond hearing before an immigration judge if they have been locked up for six months. In December, the Supreme Court will take up this issue in the ACLU case Jennings v. Rodriguez. No matter the outcome of the case, the president has full authority to extend the six-month bond hearing rule nationwide. If elected, Clinton should do so immediately.
Finally, Clinton needs to address the question of children and asylum seekers appearing in immigration court without lawyers. Every day children, some as young as 3 years old , and asylum seekers appear in immigration court by themselves against government prosecutors. Left to defend themselves in highly complicated immigration proceedings, they have no chance of getting a fair day in court.
Immigration proceedings are high stakes, since losing a case could result in family separation and deportation to possible persecution, violence, even death. To ensure immigration justice, Clinton should appoint counsel to all children and asylum seekers in immigration court hearings.
On November 8, voters will determine America’s future in the 21st century — whether we will continue to be a nation of immigrants or whether we will walk down a road of nationalism and exclusion. No matter who wins, we must insist that our next president implement immigration policies consistent with constitutional principles of fairness, due process and civil liberties.
