Mike & Co. –
Over the last 48 hours, Donald Trump has elaborated on his immigration policy, noting that while many illegal immigrants would be deported, those not deported would instead pay “back taxes.” While widely reported as a “softening” of his traditional rhetoric, these new details raise serious questions about how tax delinquency could be used as a legal basis for deportation.
Though Trump’s campaign cancelled a major speech on immigration in Colorado scheduled for Thursday, Trump has said he will lay out further details on his immigration plan over the next week.
For now, we examine this idea of a quid pro quo involving payment of taxes and protection from deportation from a legal perspective, and trace its roots to the “alt-right” movement in American conservative politics.
The Alt-Right Movement
The alternative right, or Alt-Right, is a relatively new force in conservative politics, first appearing in media references as recently as 2010. It is supported primarily by mostly white, young men with strong social media proficiency and a belief in tribal psychology. Alt-Right opposes the Republican establishment for betraying traditional American culture of free market economics and rejects the notion that economic efficiency should be thesummum bonum of conservative values.
Much of Alt-Right philosophy features a natural conservative mindset, appealing to many who unapologetically support a prioritization of the interests of their own demographic, namely white America. Natural conservatives favor homogeneity over diversity, stability over change, and hierarchy and order over radical egalitarianism. Their instinctive wariness of the foreign and the unfamiliar has resulted in a racial and nationalistic approach to American politics, currently not embodied by any of the main political parties. Feeling abandoned by the establishment GOP, many natural conservatives have joined the Alt-Right movement in supporting Donald Trump.
Trump’s Alt-Right Relationship
While Trump had not been formally endorsed by any Alt-Right leader or group, he has certainly adopted its rhetoric and ideology to develop policy and promote his campaign. Former Ku Klux Klan leader David Duke has said that Trump has not created the Alt-Right movement, but instead is “something he tapped into.” His America First agenda reflects some of the core beliefs of Alt-Right, including reducing overseas interventions, limiting free trade as an economic peril, and targeting illegal immigration for national security reasons.
The Alt-Right ideology clearly has strong implications for economic and immigration policy, among the chief policy priorities of Donald Trump.
From the beginning of his campaign, Trump has pushed a hardline on immigration policy, using inflammatory and offensive rhetoric on illegal immigrants and supporting a 1,500-mile maximum security wall along the US-Mexico border. Trump’s immigration policy in most respects has reflected the Alt-Right goal to protect the “white tribe” from foreign threats.
Concerning Shift on Immigration Policy
This week, Trump has sought to convey openness to a “softening” of laws affecting undocumented immigrants, which many have seen as a distancing from his previous hardline stance. Trump reiterated his intention to build a wall on the US-Mexico border, and later added that while no illegal immigrants would receive citizenship, others will pay back taxes, stressing “there’s no amnesty, but we will work with them.”
Yesterday he said that while illegal immigrants would not receive US citizenship, he suggested that some pay back taxes, while the “bad ones” will still be sent out of the country. He reiterated that those who would pay back taxes would still not receive citizenship or amnesty.
In the face of this idea, HRC said today, “Don’t be distracted by his latest attempts to muddy the waters. He may have some new people putting new words in his mouth, but we all know where he stands,” adding that he would form a “deportation force” and halt the “bedrock constitutional principle” of birthright citizenship.”
On closer examination, Trump’s recent comments on immigration broach new legal ground. In distinguishing between illegal immigrants who are deported and those who pay back taxes, Trump may have made a disturbing connection between tax delinquency and deportation. From another perspective, he proposes to make protection from deportation available at a price, in taxes.
There appears to be some legal precedent for tying tax delinquency to deportation. In 2012, the Supreme Court affirmed a ruling in the Kawashima v. Holder case, in which an immigration judge ordered the removal of two resident aliens following convictions for tax-related crimes. The two immigrants found guilty of false corporate tax returns were not US citizens, but were legal residents of the country. The judge found their crimes to be “aggravated felonies” and grounds for deportation.
In addition, the Fixing America’s Surface Transportation (FAST) Act, signed into law in December 2015, included a tax provision requiring the Department of State to deny passports and passport renewals to serious delinquent taxpayers, and to revoke passports previously issued to such delinquents.
Under current law, people undergoing deportation proceedings may apply for a Cancellation of Removal, which requires proof that a person has resided in the US for 10 years, has maintained a “good moral character” throughout those years with no criminal offenses, and has experienced “exceptional and extremely unusual hardship.” While paying taxes could qualify as part of establishing one’s moral character, it is not an explicit requirement, and judges possess a high degree of discretion in approving applications for cancellation. Whether paying taxes as a sort of “deportation insurance” to prevent removal would be deemed legal by the US judicial system is open question as likely a case of first impression.