Tocqueville observed that American problems begin as moral dilemmas, but end up as legal cases. The Supreme Court issued its parting gift before the summer recess in this spirit. The court affirmed a precedent for Donald Trump’s “Muslim ban” executive order. The court identified areas in which other precedents might modify the order. And the court kicked the really contentious part – its final opinion – down the road to the other end of the summer.
It is hot and humid in Washington, DC. Just as the administrators of the British Raj would retire for the summer to Simla and the hill stations, so America’s elites take to the hills and beaches after the Fourth of July. The pundits can sweat it out in the cities of the plain. The arguments over the political implications and procedural details of the “Muslim ban” will probably continue to eclipse the wider problem – the need for a complete overhaul of America’s border controls.
The nine judges of the Supreme Court voted unanimously, and Trump tweeted a claim of “clear victory”. But a trio of conservative-leaning judges, Trump’s appointee Neil Gorsuch among them, issued a partial dissent.
Clarence Thomas, its author, wrote that even the partial implementation of the ban before the court has ruled “will burden executive officials with the task of deciding – on peril of contempt – whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country”.
The ruling was a small and not entirely clear victory for Donald Trump. It was a larger victory for the constitutional system which he professes to serve, and which chafes him at every turn.
The court did not rule on the ethics of the executive order, or whether it was likely to protect Americans from Islamist terrorism. Nor did the court rule on whether the order was the work of a bad man, an idiot, a patriot, or some combination of all three. It affirmed the principle that “non-resident aliens” do not have an automatic claim to the constitutional rights of “resident aliens” or US citizens. In this, American law resembles that of every other liberal state.
The court did express an opinion, however, about Trump’s motives. The lower courts had ruled that Trump’s anti-Muslim statements suggested that he had issued the order from bigotry. But the Supreme Court followed Kleindienst v. Mandel (1972), and accepted Trump’s argument that the order was issued on grounds of national security. The court did not address the question of whether Trump’s motive, in this case as in so many others, was personal animus against Barack Obama.
The court also suggested that foreign nationals with a legitimate reason – students, relatives of American citizens, and skilled workers with temporary visas – should be allowed into the country. This too resembles the law in other liberal states. It also identifies a deeper problem: the systemic failure of the American immigration and visa systems.
Immigration law has not been comprehensively revised since the Immigration and Nationality Act of 1965, an artefact of the Lyndon Johnson presidency. The law on refugees derives from the Reagan-era Refugee Act of 1980. These Acts were superannuated by the opening of borders after the end of the Cold War, and rendered absurd and cruel by the rise of cheap air travel.
The malfunctioning of immigration and refugee laws is a moral failure. The dysfunction of the laws concerning work visas is a political failure with implications for national security. The skilled workers of the world want to come to America, to contribute and benefit from a business culture favourable to innovation and a legal culture favourable to private property. But America does not want them.
The Citizenship and Immigration Service issues only 65,000 H1-B visas per year to specialist workers. In 2016, there were 230,000 applications, many of them in knowledge-based sectors like IT, and scientific and medical research. The US is squandering an opportunity to gather some of the best trained and highly motivated workers in the world.
The nine judges of the Supreme Court are not the Council of Ten in the Venetian republic. Immigration and visa laws are made by Congress. Limiting the immigration of skilled workers is a rare point of bipartisan consensus. Key constituencies – the labour unions for the Democrats and the nativists among the Republican base – oppose expanding the H1-B program because it might undercut the rights and salaries of American workers.
In April, President Trump issued a “Buy American, Hire American” executive order. Federal agencies must now suggest revisions to H1-B and other employment- and study-based programmes. This is a foolish and damaging order.
The demographic health of the United States depends upon immigrants, who have more children than natives. So does the country’s economic health. One in five Fortune 500 companies was founded by an immigrant, and a further one in five by the children of immigrants. To reduce the legal immigration of the most productive and creative workers is against the national interest.
The immigration, refugee and employment visa system is a series of parallel bureaucracies. None of them has a long-term strategy reflecting the current nature of population movement, or the future needs of the United States. The telegenic images of refugees from failed states and war zones mask the movement of the greater number of skilled and unskilled migrants who want a better life.
Nor is there joined-up thinking in the Trump administration’s policies. The national security risks emanating from seven Muslim-majority states should have become an opportunity to revise the immigration, refugee and visa systems around common principles of security, opportunity and skilled-worker utility.
Trump could have offered visas to doctors from Libya, computer engineers from Lebanon, and scholars from Somalia, while also promising stricter controls on non-skilled immigrants, and tighter screening of visitors from suspect states. This would have augmented America’s creative capital, and affirmed what remains of its universal appeal. It might even have established a consensus in Congress, too. For it is there, not in the White House or the Supreme Court, that laws are made.
