Presidential election of 2016

Immigration

One of Trump’s most controversial early executive orders, issued on January 27, implemented his promised “Muslim ban,” which temporarily suspended immigration to the United States from seven Muslim-majority countries in the interest of national security. The travel ban, as it came to be known, was immediately challenged in court on statutory and constitutional grounds (i.e., for allegedly violating anti-discrimination and other provisions of the U.S. Immigration and Nationality Act and for being inconsistent with the due process and establishment-of-religion clauses of the Constitution). The ban also provoked spontaneous demonstrations at major airports in the United States in support of persons with valid visas who were prevented from boarding flights to the U.S. or who were detained upon arrival and forced to return to their originating countries. In February a district court in Washington state issued a nationwide temporary restraining order enjoining enforcement of the travel ban, which the Court of Appeals for the Ninth Circuit declined to stay.

Foreseeing eventual defeat in the courts, Trump in March issued a second executive order designed to avoid the constitutional pitfalls of the first, which it superseded. The second order also dropped Iraq from the list of targeted countries and narrowed the categories of persons whose travel would be affected. Nevertheless, district courts in Hawaii and Maryland issued preliminary injunctions blocking enforcement of the revised travel ban; the injunctions were largely upheld in May and June by the Fourth and Ninth Circuit Courts of Appeal, respectively. After agreeing in June to hear the consolidated cases during its October 2017 term, the U.S. Supreme Court significantly narrowed the injunctions, allowing the travel ban to be enforced against all “foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

In September Trump issued a third version of the ban, which continued to apply to immigrants from six Muslim-majority countries but now included immigrants from North Korea and certain government officials of Venezuela. The Supreme Court then vacated as moot the cases it had been scheduled to hear regarding the second travel ban. The third ban, like the previous two, was immediately challenged and enjoined, but the Supreme Court stayed the injunctions in December pending review by the Fourth and Ninth Circuits (which upheld them). The Ninth Circuit’s decision in Trump v. Hawaii was eventually reversed by the Supreme Court in June 2018. In its ruling, the Court held, among other things, that the ban was not obviously motivated by unconstitutional religious bias, notwithstanding Trump’s many public statements indicating otherwise to lower courts.

From at least the early 2010s most illegal immigration across the U.S. southern border with Mexico had been undertaken by people seeking asylum from violence and persecution in their home countries, especially in Central America and Africa. Under U.S. immigration law, foreign persons who are physically present in the United States, including those who entered the country illegally, are entitled to asylum as refugees provided that they can establish a credible fear of persecution in their home countries based on their race, religion, nationality, political opinion, or membership in certain social groups.

In April 2018 the Trump administration announced what it called a “zero-tolerance” immigration policy under which all foreign adults who entered the United States illegally (a misdemeanor for first-time offenders) would be criminally prosecuted. The policy entailed that children in families who had illegally crossed the U.S. border together would be taken from their parents (or legal guardians) and placed within a system of hundreds of shelters across the country, which were operated or contracted by the Office of Refugee Resettlement (ORR), a division of the Department of Health and Human Services (HHS). Eventually, according to HHS policy, separated children would be released to sponsors (their parents, close relatives, or other suitable persons) or to foster families in the United States. After surrendering their children, parents would be held in detention centers or jails to await prosecution for illegal entry. Under the previous immigration policy, known as “catch and release,” migrant families were usually quickly released and allowed to remain together in the United States while their cases were being resolved by immigration authorities. In practice, family separations conducted under the zero-tolerance policy were traumatic for both children and parents.

The Trump administration had conceived of and initially defended the separations as a necessary deterrent to illegal economic immigration by people falsely claiming fear of persecution in their home countries. Trump himself falsely asserted that the separations were required by existing immigration law and blamed Democrats for not changing it—though his own party controlled both houses of Congress at the time. Soon, however, widely circulated photographs of crying and visibly terrified children and children confined within fenced enclosures resembling cages prompted international condemnation of the separation policy, as did eventual news reports of the physical and sexual abuse of some children in shelters and the deaths of others from lack of adequate medical care. Facing pressure to act from congressional Republicans, in late June Trump signed an executive order ending the separations. One week later, pursuant to a class action lawsuit filed by the American Civil Liberties Union (ACLU), a federal judge in California issued an injunction against further separations and ordered the Trump administration to return to their parents all of the more than 2,700 children who had been seized under the zero-tolerance policy. The judge’s 30-day deadline was not met, however, largely because the administration had not established any procedures for tracking the whereabouts of separated children or for reuniting children with their parents or guardians after separation—a situation noted critically in the judge’s order and confirmed by an October 2018 report on the family separation policy by the U.S. Government Accountability Office (GAO). Even after the zero-tolerance policy was rescinded, border authorities continued to seize hundreds of children on the basis of clauses in the injunction and the executive order that permitted taking children from parents who were “unfit” or who posed a “danger” to their children. Broadly interpreting those exceptions, border officials reportedly applied them to parents who had committed minor offenses or who appeared not to be taking proper care of their children. Other family separations were undertaken on the basis of the federal government’s narrow definition of “family,” which allowed children who arrived with other relatives (e.g., aunts, grandparents, or older siblings) to be treated as “unaccompanied.”

As another facet of its campaign to reduce illegal immigration, the Trump administration also greatly increased arrests of undocumented immigrants by Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security established in 2003. During the Obama administration, ICE had concentrated on undocumented immigrants with serious criminal records, but in January 2017 Trump directed the department to find, arrest, and deport all persons without documentation, regardless of how long they had lived in the country or whether they had committed any crimes. ICE officers thereafter regularly conducted raids—at private homes, churches, schools, courthouses, and job sites—in select locations throughout the country. Both criminal and noncriminal arrests increased nationwide as compared with 2016, but noncriminal arrests constituted a much greater percentage of the total. The raids were condemned by prominent Democrats and civil rights organizations as draconian and wasteful, while some progressive groups proclaimed an “abolish ICE” movement. At the same time, dozens of cities and towns declared themselves “sanctuaries,” vowing not to cooperate with ICE and other federal authorities seeking to remove undocumented immigrants from their jurisdictions.

Emoluments clause

During the presidential election campaign, some of Trump’s critics had warned that his presidency could create a unique and immediate constitutional crisis because of his possible violation of the foreign emoluments clause of the U.S. Constitution, which generally prohibits federal officeholders from accepting gifts, payments, or other items of value from foreign states or rulers without congressional permission. A related constitutional provision, known as the domestic emoluments clause, specifically prohibits the president from receiving any emolument from the federal government or the states beyond his official compensation. Trump’s vast, complex, and largely secret international business interests, it was argued, could create exactly the kind of conflict of interest that the foreign emoluments clause was intended to prevent—unless Trump were to sell his assets or place them in a blind trust. Although federal conflict-of-interest laws did not apply to the president and vice president, several of Trump’s immediate predecessors in office had used blind trusts or other means to avoid the appearance of conflict of interest.

To address such concerns, in January 2017 Trump announced that he would surrender control—but not ownership—of the Trump Organization to his sons Donald, Jr., and Eric; that no new business deals with foreign countries or the U.S. government would be undertaken; and that any profits derived from patronage of Trump’s properties by foreign governments would be donated to the U.S. Treasury—an arrangement that failed to satisfy some specialists in government ethics. In late January a public interest group, Citizens for Responsibility and Ethics in Washington (CREW), later joined by other plaintiffs, filed suit against Trump (in his capacity as president) in federal district court in Manhattan, alleging that he was in violation of the foreign emoluments clause. In June the attorneys general of Maryland and the District of Columbia sued Trump for allegedly having violated both the foreign and domestic emoluments clauses, and soon afterward nearly 200 Democratic members of Congress filed a separate suit alleging that, by continuing to accept emoluments from foreign countries without consulting Congress, Trump had denied Congress the opportunity to give or withhold its required “Consent.” After the CREW suit was dismissed for lack of standing (the possession of a sufficient interest in the outcome of a judicial proceeding, usually on the basis of an existing or anticipated legal injury) in district court in December, the plaintiffs appealed the case to a three-judge panel of the Court of Appeals for the Second Circuit, which vacated the lower court’s judgment in September 2019, allowing the suit to proceed to trial. Trump unsuccessfully petitioned the Second Circuit for an en banc hearing (before all judges of the court) and then filed a writ of certiorari (petition for review) with the Supreme Court in September 2020.

In March and July 2018 a federal district court denied motions by Trump to dismiss the suit by Maryland and the District of Columbia, allowing that case to move forward with regard to the operation of the Trump International Hotel in Washington, D.C. After issuing a stay of the district court’s proceedings, a three-judge panel of the Court of Appeals for the Fourth Circuit reversed the district court’s rulings and ordered a dismissal of the suit for lack of standing. That judgment in turn was set aside in October 2019, when the Fourth Circuit agreed to an en banc hearing in December. In May 2020 the Fourth Circuit upheld the district court’s original rulings, leading Trump to file a writ of certiorari with the Supreme Court in September. Meanwhile, in the suit brought by Democratic members of Congress, a district court rejected (in September 2018 and April 2019) the Trump administration’s motion to dismiss but agreed in August 2019 to stay discovery and to allow an immediate appeal of the court’s orders after a three-judge panel of the Court of Appeals for the District of Columbia Circuit remanded the case in July. That panel later agreed to hear oral arguments in December on the question of whether the district court had erred in allowing the suit to proceed. In February 2020 it dismissed the suit for lack of standing, and in October 2020 the Supreme Court declined to review the circuit court’s judgment. Following Biden’s inauguration as president in January 2021, the Supreme Court dismissed both of the remaining emoluments suits as moot.

Although those cases were not resolved, there was no doubt that Trump had profited from patronage of his hotels, golf resorts, and other properties by officials of foreign governments, foreign and domestic lobbyists, Republican politicians, representatives of conservative interest groups, and members of his own administration. It was also apparent that much, if not most, of the business he received from foreign governments and from foreign and domestic lobbyists was undertaken on the assumption (justified or not) that Trump would look more favorably upon those who spent money at his properties than upon those who did not. During his presidency, it became a matter of routine that persons or groups who wished to influence the Trump administration at high levels, whether in the United States or abroad, would patronize a Trump-owned property whenever feasible. Trump’s properties also received much business from the U.S. government itself, which was forced to pay Trump for services and accommodations (e.g., for U.S. Secret Service protection) at his golf courses and at his Mar-a-Lago resort in Florida during his frequent visits to those venues.