Introduction
The federalism in the US, with more than two hundred years of history, was built on the symmetry of the constitutional status of the Federation’s subjects. Transforming the confederation into a federation, the founding fathers of America saw the basis for the future state structure as the maximum integration of its independent parts (Gagnon & Keil, 2016). The principle of discretionary oversight presupposed that only states could be active participants in federal relations, but also citizens in some cases. The key element of American federalism is the power of individual states to determine their own political structure, as well as the policy to influence the central government bodies.
Today, federalism also serves as the instrument to balance the powers of the states and federal government. In cases when it is critical to limit the decisions of the President or withstand the actions of the Democratic party, for example, federal courts act as restraining forces. This paper aims to provide a critical review of how federalism was designed and perceived by the Framers and how it is practiced nowadays in the context of immigration and Trump’s presidency. With the rapidly increasing number of immigrants in the US, the questions about their support and well-being of the country raise. It is especially important to resolve the issues with illegal immigration and associated social problems of unemployment, substance abuse, and crime. To understand the role of federalism in resolving these issues and trace the reactions of Trump, this paper analyzes the academic evidence and provides relevant recommendations for the future politics of the US.
Research Methods
The method of the critical literature review is used for this paper to obtain pertinent data. Namely, the University’s database was searched for the articles that discuss Trump’s policies and laws that are directed to resolving the issue of immigration. In addition, several scholarly journals were researched directly to find the necessary information, such as Emerald, Elsevier, and Goggle Books. The keywords for the search included “Trump and immigration”, “federalism in the US”, “ban for immigration”, and “federalism of the Framers”. Based on the common topics and controversies, the key themes were identified, which were used to properly structure the paper. The sources that were published since 2015 were involved, which ensures their relevance and high quality.
Literature Review
Federalism as Viewed by the Framers
In federal states, the problem of delineation of powers arises, and the US was not an exception. Accordingly, the problem of the divisibility of sovereignty was anticipated by the Framers. As stated by Gagnon and Keil (2016), in a federal state, the central government and the power of the subjects were perceived to exist with each other and in each other. The question of the balance between the rights of individual states and the government became the main problem. While Madison and Hamilton pointed out the failure of states to ensure the safety and well-being of the people, Jefferson and Calhoun declared state sovereignty to be indivisible. In their articles and appeals, American federalists substantiated the practicality of the new system and its effectiveness in ensuring the rights and freedoms of citizens (Gagnon & Keil, 2016). The process of ratifying the Constitution helped to resolve controversial issues and made it possible to find a formula for the correct balance between the jurisdiction of individual states and the national government.
The topic of federalism was probably what caused the most controversy during the struggle for the Constitution ratification during the early development of the American nation. The confederation that preceded the Constitution was based on the authority of the states. Based on the Articles of Confederation, the national government was the creation of states, and they retained all sovereign powers, except for the specifically given nation (which were extremely few) (Somin, 2018). The entity called the US was viewed as something like a state league.
The first 75 years of the development of the US political system were marked by continuous constitutional and political conflicts over the nature of American federalism. Immediately after the adoption of the Constitution, Washington, Hamilton, Marshall, and their federalist counterparts began to advocate for greater federal authority, while Jefferson, Madison, Roan, and their party colleagues argued that the union of the American states represented only a confederation in which all powers and sovereignty were concentrated at the state level (Gagnon & Keil, 2016). The critics of the Constitution argued that the government could not function effectively at the level of such a large state as a nation. They feared the consolidation of power in the national government and thought that the end of the expansion of national power would result in tyranny and despotism.
The US Constitution is not limited to establishing the exclusive powers of states and the government. In particular, the scope of overlapping federal and state rights is established. These include lawmaking and law enforcement in the field of civil rights, taxation, regulation of corporations, and ensuring general welfare (Somin, 2018). These issues are under the jurisdiction of both the US government and the states (Gagnon & Keil, 2016). However, there is no parity of their participation in these issues since, in accordance with the doctrine of preferential rights of the Congress, the federal legislation is recognized as effective, and not the legislation of the states that has come into conflict with it.
Today’s Federalism and Trump’s Approach to Restricting Immigration
In the US, it is traditionally believed that the federation in general and the states practice sovereignty. This approach to sovereignty is substantiated by modern scholars and politics who state that sovereignty is divided between the federation and states. In their opinion, the US Constitution designed a government in a similar sense to the state governments. The federal government, likewise state governments, has a legislative, executive, and judicial branch of government. It establishes the limits of the powers of the authorities. In some circumstances, the powers of the central government and the state governments coincide, in others, they can be opposite to each other. This is one of the features that characterize the uniqueness of the existing system. The federal laws are passed on issues traditionally under the jurisdiction of local administrations, such as the fight against crime, fire safety, land use, education, and even issues of marriage.
Speaking about immigration, the origins of the multinational and multiracial population in the US should be briefly identified. The entire modern multinational and polyethnic population has developed resulting from forced (Negroes) or voluntary immigration. The indigenous population of America did not take part in the federal building. For many years, Indian tribes were considered as foreign entities, and treaties were concluded with them, which can be qualified as quasi-international relationships. Even today, Indian tribes acquire a special status compared to other Americans (Kuge, 2020). The alien population was mixed, although even within the framework of some settlements, different ethnic communities can live quite separately. They had no historical ties with that territory, so there was no interest and practically no opportunity to create ethno-territorial formations.
In view of the great cultural diversity of US citizens, Trump decided to limit the entry of people into the country. The ex-president took the first step on this path immediately after coming to power. In 2017, he promulgated a decree affecting the order of entry into the United States for citizens from seven countries with a predominantly Islamic population. For Iran, Syria, Sudan, Libya, Somalia, Yemen, and Iraq, Trump’s decree provided for a 90-day travel ban to the US, as well as a 120-day ban on admitting refugees. During the presidency of Barack Obama, the quota for admitting refugees was 110 thousand persons annually, but Trump cut it in half. By the time the decree was adopted, the yearly quota for the admission of refugees was almost fulfilled: out of 50 thousand, less than a thousand people remained to be admitted.
The adoption of the above immigration decree gave rise to another problem. After the promulgation of the decree, 100 thousand already issued visas were canceled. Trump ordered citizens of the mentioned Muslim countries to refuse to fly to America if they do not have a US residence permit or diplomatic visa. Such a decision received criticism from the United Nations (UN), as well as human rights organizations and public figures worldwide. The main argument against the presidential decree is that it violates the constitutional foundations of religious and national equality (Kuge, 2020). The US National Immigration Law Center (NILC) announced that it is suing Trump and the head of the US Department of Homeland Security. The intention to file a judicial lawsuit was also filed by the Council on American-Islamic Relations (CAIR).
As a result of a sharp internal political struggle, a federal court in New York imposed a temporary ban on the expulsion of immigrants with valid US visas from US airports. Since this did not suit either Trump or the immigrants, the struggle for the decree and against it continued. Even officials subordinate to Trump took the side of the opponents of the decree. The White House instructed the US intelligence agencies to assess the measures taken by the head of state. As part of this work, the ministry prepared a report stating that citizenship is hardly a reliable indicator of potential terrorist activity. The US Department of Homeland Security called the president’s ban on the entry of citizens of Muslim countries into the US ineffective.
Trump and Sanctuary Cities
Sanctuary cities are the territorial entities that refuse to cooperate with the federal authorities to find illegal immigrants, giving them the right to live in the country without documents. In particular, a sanctuary city can be a state, county, or a separate municipality that does not transfer data about a person’s immigration status to law enforcement or federal authorities (Lasch et al., 2018). It also does not carry out deportation, which is used by many illegal immigrants. Trump has repeatedly threatened to end federal funding for those administrative units that provide shelter to illegal migrants. According to Miroff and Barrett (2020), the administration of President Donald Trump considered placing them in such cities due to Democrats’ refusal to change immigration laws, which were treated by Trump as quite dangerous laws that set additional challenges for the citizens and the country’s politics and economy.
Due to the country’s decentralized structure, it is difficult to pursue a coordinated immigration policy. Currently, the federal government has to rely on the voluntary assistance of non-subordinate authorities, who do not always consider it necessary to act in accorbyl with the center (Reich, 2018). More than 200 cities and districts in the country openly sabotage the work of Immigration and Customs Enforcement (ICE) (Kuge, 2020). The list of sanctuary cities includes Washington, Boston, Miami, Chicago, New York, Philadelphia, and so on. In all these cities, the internal instructions of the city police and municipal services prohibit them from cooperating with ICE, including extraditing illegal immigrants who have not committed criminal offenses for deportation.
As part of the solution to the immigration problem, the US administration is exploring the option of sending undocumented illegal immigrants to the so-called cities of refuge. At first, the White House denied that the option was on the list. However, President Donald Trump said that he has every right to use the option of sending illegal immigrants detained at the border exclusively to such cities (Miroff & Barrett, 2020). In many of the largest sanctuary cities, such as San Francisco, Los Angeles, and New York, the supporters of the Democratic Party are strong. As The Washington Post wrote, the White House twice offered the migration authorities to send illegal immigrants there as revenge on the political opponents of the Republican Trump (Miroff & Barrett, 2020). However, according to media reports, the Department of Homeland Security previously pointed out the illegality and counter productiveness of these measures.
Trump wanted to tighten the immigration policy if he is re-elected for a second term. According to his views, four ideas were being considered, including the limitation of the period of granting asylum, closing the sanctuary cities, expanding the ban on the entry of citizens of other countries, and extending the requirements for recipients of a work visa (Reich, 2018). As an adviser to the US president explained in an interview, Trump aimed to raise the standard of entry to the United States (Reich, 2018). The argument was that in many cases, regulatory reform is needed to address these illegal migration issues and restore a semblance of sanity in our immigration programs.
In 2020, Trump signed a document that temporarily restricted the entry of immigrants on a number of visas, including for highly skilled workers. The US administration argued that this measure would help preserve jobs for unemployed Americans. The US Citizenship and Immigration Service (CIS) announced a 20% increase in immigration fees, which was attributed to the increased costs of preventing immigration fraud and due diligence of applicants (Miroff & Barrett, 2020; Reich, 2018). Thus, significant measures were implemented in practice by the Trump administration to reduce the number of immigrants in the US.
Research Findings
The members of the federation are not states in the proper sense of the word, and they do not have sovereignty, although it is formally proclaimed in some states. Instead, the subjects of the federation are either completely deprived of the right to take part in international relations, or their foreign policy competence is severely limited and is carried out under the control of the federation likewise in the US. As a rule, it concerns the issues within the competence of the subjects of the federation and does not affect the sphere of political relations. It can be stated that in America, modern federalism performs two important functions. There is the decentralization of powers by means of vertical division and the integration of territorial communities (Miroff & Barrett, 2020). In addition, great importance is attached to integration ties and the issues of communication between the federal power and the regions.
The sphere of immigration relations was an extremely convenient object for unilateral actions of the executive power since for 20 years, it was regulated by laws launched by the federal authorities who are accountable for border control and naturalization of immigrants. The harsh language points to important changes taking place in the identity of the American nation, which has developed as a nation of immigrants and previously readily used the human capital produced in other countries. The US is increasingly beginning to perceive the world around it as hostile and full of threats, and this attitude extends not only to its nearest neighbors. To protect the American workers, Trump suspended immigration to the US. This was expected to ensure that unemployed Americans from all walks of life will be first in line for jobs as the economy grows. This initiative by the ex-President of the US caught many by surprise and caused a wave of outrage among Democrats and fighters for the rights of immigrants.
Despite the fact that the US federalism was built on the principle of equality of subjects, researchers now call them both an asymmetric federation and a model of a federation (Somin, 2018). The US federation also includes associated states since they are adjacent to the freely united states of Puerto Rico, the Republic of Palau, Federal States of Micronesia, and others, as well as federal territories. The supporters of the symmetry of federalism proceed from the postulates that are rooted in the Constitution. Focusing on the fact that Trump strengthened the laws that manage the entry of immigrants into the country, it should also be noted that he unintentionally improved the judicial protection of the states’ autonomy. In other words, it can be concluded that federalism becomes great again since a number of court decisions in favor of sanctuary cities limited the federal power.
The decentralization of power is a mandatory requirement for the content of relations that make up the concept under consideration. The degree of decentralization is determined by specific historical conditions. Under their influence, the content of federal ties can change so much that there will be a need to adjust the term denoting this concept. Nevertheless, the essence of federalism is not limited to the mechanical distribution of jurisdictions between the federal center and regional authorities and the building of relations on the basis of such delineation of jurisdictions and powers. The true meaning of federalism lies in the fact that due to it the mechanism of ensuring civil freedom and self-government at all levels of the exercise of power works, a system of vertical separation of power and interaction and mutual balancing of all bodies of power and administration functions.
Assessing the development of American federalism in recent years, one should also emphasize its role that is similar to the well-known system of checks and balances. It works as an effective balance instrument in the self-restraint of powers between the center, subjects, and local authorities, as well as the ability to self-adjustment. It is especially important during the emerging conflicts between different levels of government, when they do not reach their climax, but find political and legal resolution at an early stage of development. The latter characterizes a qualitatively new level in the development of federal relations in American society.
The long-term erosion of confidence in the US federal government culminated in Trump’s victory in the presidential election of 2016. President Barack Obama had a high approval rating, yet only 19% of Americans believed the federal government was doing the right thing (Conway & McFarland, 2019). Given the traditional Republican priorities, for example, in the selection of members of the future Trump presidential administration, the programs of the federal government (with the exception of defense) are likely to go under the knife. The irony is that cuts in health, education, training, and environmental spending, against a backdrop of significant regressive cuts in personal and corporate taxes, will further enrich the elite at the expense of programs that now benefit most households.
However, the serious social and economic problems that helped solve these federal programs will not disappear. Responsibility for them will now simply lie more on the shoulders of local authorities, who will have to look for innovative ways to solve them. Moreover, the answer to Trumpism is precisely progressive federalism, which is understood as the achievement of progressive political goals through the use of significant powers delegated to regional authorities in the US federal system. This provision of the decree is remarkable from the perspective of the relations between the executive and the legislature. In fact, the Trump administration argued that order in the field of immigration could be ensured without a new comprehensive immigration reform, relying solely on the repressive and law enforcement apparatus, including the border service (Reich, 2018). The decree called on state and local governments to conclude agreements with federal authorities, according to which, when detaining, arresting and investigating illegal immigrants, they will be guided by federal law.
All in all, the Trump administration’s one and a half years in power has radically changed the tone of public debate in America over the issue of immigration. There was a complete break with the traditional non-partisan consensus of the leadership of the two main political parties in the US regarding immigration as a factor of net positive contribution to the social and economic development of America (Reich, 2018). The White House began to view immigrants, both legal and illegal, as a threat to the national and economic security of the US.
The Trump administration’s ongoing efforts to dismantle the immigration system were not only a violation of the separation of powers and a clear overstretching by the executive branch, but also immoral, anti-American, and illegal actions. This Republican president was undermining the system of immigration by proposing a new non-US rule to rewrite immigration laws. Based on the analysis carried out, it can be stated that the implementation of Trump’s immigration policy is inscribed in the overall American strategy aimed at realizing American interests and ensuring the advantages for the US. Trump has curtailed the influx of refugees and visitors from Muslim countries, questioned the conditions of stay in the country of immigrant children brought to America, and took draconian measures against illegal immigrants. However, no matter what obstacles were being built, many millions of legal and illegal immigrants already live in the US, and their children born there will be considered full US citizens, which will inevitably affect the American political and economic landscape.
Recommendations for the Future of the US
To function successfully, the US federal system should find the right balance between cooperation between the central government and the federated units and competition between them. This presupposes an appropriate combination of separate structures with functional cooperation relations, a culture of mutual recognition of laws in administrative and judicial practice, and an openness of the process of mutual trade. One can say that a certain amount of both two-tier federalism and federalism of cooperation is required to allow governments to work together to achieve common goals. At the same time, if each government does not retain the right to make decisions and the freedom to say no, this cooperation will only be a cover for central government violence.
Regarding the issue of immigration in the context of federalism, it seems that the intergovernmental relations should be clarified through a series of new policies and laws. It is critical to identify the jurisdictions of the federal power and those of the states to better understand their interactions. The sanctuary cities want to protect their people, and the central government also aims to provide safety and security to the population. This controversial dilemma has many sides, which should be considered from different perspectives. For example, the rules of border states can be formulated, resulting from a compromise between the opposing powers. In general, the implementation of more positive laws to immigration should be preceded by an in-depth research and analysis.
Conclusions
In conclusion, it should be stated that the US is based on federalism as it was created by the Framers. They wanted to protect America from the tyranny of the central government and also ensure that each of the states has certain powers to decide on their local issues and impact on the country’s decisions. The ratification of the Constitution became the cornerstone of federalism. However, the controversies about the interpretation of federal powers were the topic of discussions. Today, these controversies remain as it was viewed based on Trump’s approach to immigration and the reactions from sanctuary cities and courts. The mentioned ex-president tried to strengthen the laws on the entry to the US, which was met by the opposition from sanctuary cities, where immigrants can live without documents. The refraining power of the federal courts and states’ opinions shows that federalism still serves as the balancing instrument to prevent tyranny and ensure that the people of the US are protected by the laws.
References
Gagnon, A. G., & Keil, S. (2016). Understanding federalism and federation. Routledge.
Reich, G. (2018). Hitting a wall? The Trump Administration meets immigration federalism. Publius: The Journal of Federalism, 48(3), 372-395.
Somin, I. (2018). Making federalism great again: How the Trump Administration’s attack on sanctuary cities unintentionally strengthened judicial protection for state autonomy. Texas Law Review, 97, 1247-1294.
Kuge, J. (2020). Countering illiberal geographies through local policy? The political effects of sanctuary cities. Territory, Politics, Governance, 8(1), 43-59.
Conway III, L. G., & McFarland, J. D. (2019). Do right-wing and left-wing authoritarianism predict election outcomes? Support for Obama and Trump across two United States presidential elections. Personality and Individual Differences, 138, 84-87.
Lasch, C. N., Chan, R. L., Eagly, I. V., Haynes, D. F., Lai, A., McCormick, E. M., & Stumpf, J. P. (2018). Understanding Sanctuary Cities. Boston College Law Review, 59, 1703-1778.
Miroff, N., & Barrett, D. (2020). ICE preparing targeted arrests in ‘sanctuary cities,’ amplifying president’s campaign theme. The Washington Post.