Stumbles

Trump stumbles in attempts to thwart migrant caravan

A court ruling and uncertainty about his border deployment both show the limits of the president's authority.

By IAN KULLGREN

President Donald Trump is rapidly running into the limits of his power to stem the flow of migrants to the U.S.-Mexican border.

A federal judge made that clear late Monday by blocking the president’s attempt to restrict asylum-seekers at the border — a decision the White House warned would invite "countless illegal aliens to pour into our country." And Trump’s military commanders reinforced the limitations Tuesday with yet another round of uncertainty about the 5,800 active-duty troops they sent to the border region shortly before the midterm election, retreating from a day-old estimate that they could begin returning home this week.

Meanwhile, the caravans of thousands of Central Americans continue moving north through Mexico — unblocked by either Trump’s Nov. 9 asylum proclamation or the deployments of U.S. troops whose main duties have included placing concertina wire at ports of entry. So far, the Pentagon has resisted requests from the Department of Homeland Security that troops go beyond that mission by providing an armed backup to Border Patrol agents.

And that means Trump may soon be out of options for impeding the recurring migrant caravans that he has proclaimed a national security threat — in what Democrats and some retired commanders have called an attempt to boost GOP election turnout.

“Are there any other legal gimmicks that they can pursue? No,” said John Sandweg, who was DHS’ acting general counsel during President Barack Obama’s administration.

He said Obama ran into his own limitations, both legal and financial, in trying to stop illegal border crossings. That administration lacked money for family housing and faced a shortage of immigration judges that caused a years-long backlog for asylum seekers. U.S. Citizenship and Immigration Services said this year the asylum backlog reached a crisis point, ballooning nearly 2,000 percent over the past five years.

“The Obama administration tried to find some ways to stem the flow from Central America, but over time realized that there’s no easy solution,” Sandweg said. “The Trump administration tries to talk in simple ways, sound bites. But it’s not simple.”

In his ruling Monday, U.S. District Judge Jon Tigar in San Francisco temporarily halted Trump’s efforts to prohibit migrants who illegally cross the border from seeking asylum. "Whatever the scope of the president's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," the judge wrote.

Tigar’s order will remain in effect until Dec. 19, when the court will consider arguments for a permanent ban.

White House press secretary Sarah Huckabee Sanders blasted the ruling as "yet another example of activist judges imposing their open borders policy preferences," saying the administration will "take all necessary action." But she didn't say whether the Justice Department will appeal to the 9th U.S. Circuit Court of Appeals, a famously liberal court that has ruled against several of Trump’s other immigration initiatives.

The outcome came as no surprise to immigration scholars, who noted that federal law explicitly allows border crossers to seek asylum no matter whether they come through a legal port of entry. The Trump administration’s argument was so brazen, in fact, that many assumed its only goal was to whip up the Republican base.

“It’s the same rhetoric that we’ve been hearing from this administration throughout — these liberal judges are blocking what the administration is trying to do, and we’ve done everything we can do,” said Melissa Keaney, a staff attorney at the National Immigration Law Center. “It’s hard to believe they thought their maneuver was going to stand up to judicial scrutiny.”

The troops that Trump deployed, meanwhile, have run into a familiar issue: There’s only so much for them to do at the border.

Federal law prohibits the military from performing domestic law enforcement, and the Pentagon has not rushed to endorse Trump’s suggestion that troops may return fire if any migrants throw rocks at them. Instead, the border deployment has included construction engineers and logisticians who have been erecting barriers near the ports of entry, as well as helicopter pilots, medical personnel and small “quick response” teams of engineers who could assist Border Patrol.

Once their duties are finished, the troops can begin heading home — something that could begin happening this week, Army Lt. Gen. Jeffrey Buchanan told POLITICO on Monday.

“I don’t want to keep these guys on just to keep them on,” said Buchanan, who leads the land forces of U.S. Northern Command and is overseeing the deployment.

He added that all the troops should be home by Christmas, as originally expected. “Our end date right now is 15 December, and I've got no indications from anybody that we'll go beyond that," he said.

But on Tuesday, Northern Command threw those estimates in doubt, issuing a terse statement that “no specific timeline for redeployment has been determined.” And rather than heading home, the statement said, some troops may be shifted from Texas to California as the caravans change direction.

“We are continually assessing our resources and refining requirements in close coordination with the Department of Homeland Security,” the statement added.

The command issued no explanation for the shift in messages.

Trump has not stopped his immigration efforts, of course, including demanding that congressional Democrats help provide billions of dollars for a border wall or risk a government shutdown just before Christmas.

The administration could direct more resources toward asylum that could speed up the process for migrants but has largely chosen not to, said Theresa Cardinal Brown, a DHS official in the George W. Bush and Obama administrations. The Justice Department has authority to redirect funds to hire more immigration judges, she said, and DHS could hasten the process for asylum claims, stationing staff at the border to take “credible fear” statements from crossers before agents take them into custody.

Instead, Trump officials have focused their effort on keeping asylum seekers out — an approach that often doesn’t align with federal law.

“The administration’s approach has been holding up the dike and saying ‘Thou shalt not come,’” Brown said. “Unfortunately, that doesn’t work with our legal system.”