Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
Imagine a country that segregated asylum seekers, including children, in offshore detention centers, often for years. Imagine that this country’s law provides that it has no duty to protect anyone requesting asylum if that person has not exhausted efforts to reside somewhere else. Imagine that this country’s law authorizes the deportation of anyone who has journeyed through a country in which he could have stopped and not faced persecution.
Donald Trump’s America? Viktor Orbán’s Hungary? No, Scott Morrison’s Australia. The United Nations and the expected litany of NGOs have criticized Australia’s immigration law and policies, and even instigated lawsuits. Yet Australia has nonetheless preserved its matey reputation. Why then have Trump and Orbán been vilified?
Trump’s latest outrage was suggesting that the somewhat mythical “caravan” of refugees from Honduras, having trekked through Mexico, had no right to demand that they be considered for asylum in America. He tweeted: “People have to apply for asylum in Mexico first, and if they fail to do that, the U.S. will turn them away.” Cue the indignation, the claim that as a signatory to various treaties, the United States has a duty to consider whether anyone “physically present” here has a well-founded fear of persecution should they be required to “return” to their home country.
But wait: as long as the refugees are in Mexico, they are not “physically present” in America, which is thus in no position to “return” them to the country of origin. Legal subterfuge? Maybe so, but it persuaded that notorious conservative activist John Paul Stevens in a case decided over twenty years ago. Over the 1980s and 1990s tens of thousands of Haitians sought refuge in the United States. Under President Reagan, Coast Guard cutters interdicted boats on the sea but allowed Haitians who made a credible case of political persecution to be transported to the United States, where they could make a formal application for asylum. After the fall of Jean Bertrand Aristide in 1991, the exodus of refugees swelled, often in unseaworthy vessels. Because so many Haitians could not be safely provided with a screening process at sea, President George H.W. Bush had to choose between allowing all Haitians to enter the United States, where they could apply for asylum, or repatriating them all to Haiti, without affording any opportunity to establish their bona fides as refugees. He chose the second option, a policy President Clinton continued, notwithstanding campaign promises that he would relax his predecessor’s policy.
In Sale v. Haitian Centers Council, the Supreme Court upheld the practice of “border externalization,” as consistent with America’s law and treaty obligations. Justice Stevens questioned whether the Bush and Clinton interdiction practices violated the “spirit” of the law, but he added that the “wisdom of the policy choices” was “not a matter for our consideration.” Under Sale, there would be thus no legal impediment if President Trump, or any president, persuaded Mexico’s head of state to detain asylum seekers before they reached the U.S. border.
Once the asylum seekers reach American soil, the United States’ treaty obligations shift. President Trump’s legal argument, insofar as one can be discerned from a tweet, a concededly perilous undertaking, seems to be: international law provides that all persons who face a credible fear of persecution have a right to seek refuge elsewhere. However, the law is not designed to provide a roving license to cherry-pick one’s favorite nation as home. As soon as a victim of persecution escapes and lands in a “safe country” he is expected to stop and apply for asylum.
The argument, so far from being frivolous, is reflected in the law of Australia. North Koreans are denied asylum simply on the basis that they could have sought refuge in South Korea. Furthermore, several prime ministers, adopting a border externalization strategy, have explained that any asylum seeker seeking to arrive in Australia by boat will be turned away. Over 1,000 such persons, including children, have been detained in the remote Pacific Islands of Manus and Nauru. The inevitable class action lawsuit has been filed, alleging torture and, more generally, “crimes against humanity.” Undeterred, Prime Minister Morrison just weeks ago refused to sign a U.N. Migration pact, joining Hungary and the United States, citing Australia’s interest in “a strong and orderly migration program.”
Even the European Union, however prone to moralize and lecture others, has codified a prohibition on asylum shopping. The EU’s Dublin Regulations provide that an asylum seeker must seek refuge in the first member state he enters; should an application be made elsewhere, that nation must deny the petition. In 2015, Chancellor Angela Merkel announced that Germany would suspend its compliance with these procedures and entertain asylum applications even from those who had entered the EU in another nation. The result was an entirely predictable deluge of asylum seekers.
Lawsuits cluttered European courts, with a pair of landmark cases ascending to the European Court of Justice. In one case, Afghan sisters, Khadija and Zainab Jafari, challenged Austria’s decision to return them to Croatia, where they had entered the EU. The Court rejected the Jafaris’ challenge, thereby reaffirming the Dublin Regulations. From the perspective of a country such as Hungary, which shares a border with a non-EU nation (Serbia), the precedent raised understandable concerns.
In the other case, Hungary and Slovakia, supported by Poland, challenged an EU Commission decision to mandatorily relocate 120,000 asylum seekers from Italy and Greece to the other EU nations. The nominal basis for the relocation decision, Article 78 of the EU Treaty, provides that the Commission can adopt “provisional measures” when an EU nation is confronted by a “sudden inflow” of third party nationals. Among other difficulties with this argument, the inflow of refugees, in particular from Syria, was not exactly “sudden”: it had been building up since as early as 2011. That the numbers spiked in 2015 was at least partly caused by Angela Merkel’s invitation to asylum seekers.
Nonetheless, the Commission held that a “principle of solidarity” required Hungary, Slovakia, and Poland to accept refugees from other countries. That same “principle of solidarity” had not precluded Merkel from unilaterally suspending the Dublin Regulations and contributing to the “emergency situation” that engulfed the continent. And never before had the Commission made asylum burden-sharing a legal requirement; in the past, moral suasion alone had been deemed appropriate. Poland’s intervention in the relocation case was noteworthy as a failure to expand the Overton window on acceptable discourse within the EU. Poland argued that as an ethnically homogenous nation it should not be expected to receive migrants. The Commission rebuked Poland’s argument as inconsistent with a principle of non-discrimination on the basis of ethnic origin.
It has been Hungary, however, that has received the brunt of the criticism in the wake of the decision. Although its court filings were prudently legalistic, even making several compelling objections to procedural faults in the Commission’s relocation decision, extralegal pronouncements have been less circumspect. In a widely televised speech in 2016, President Orbán intoned that “the masses of people coming from different civilizations pose a threat to our way of life, our culture, our customs, and our Christian traditions.” Orbán’s invocation of Hungary’s Christian heritage raised hackles, as has his country’s construction of walls along its borders with Serbia and Romania. These walls, it is breathlessly reported, are disfigured by “barbed wire.” The significance of this observation is opaque. Is the suggestion that walls constructed for aesthetic reasons would be acceptable, but walls that function as walls are not?
Despite these criticisms, asylum fatigue has afflicted the EU. Walls—even topped by barbed wire—have been constructed as barriers, with the goal of reducing the flow of refugees. Furthermore, in March 2016 the EU and Turkey signed a deal according to which the EU gave Turkey 6 billion euros and in return Turkey accepted thousands of refugees from the EU. This is, in some quarters, denominated a bribe. Surely, it is an irony, rich for those inclined to savor it, that the same EU officials that have criticized Australia—and berated Hungary and the United States—for border externalization to deter asylum seekers, have implemented exactly this policy themselves.
But the issue is not going away. Even after Turkey’s closure of the Balkan route, Spain, Italy, and Greece remain accessible. According to a recent World Gallup poll, 158 million people would like to migrate to the United States, over 100 million people to Europe, and 36 million to Australia (which is more than its current population). Furthermore, many of the world’s most dangerous places have soaring populations. By 2050, for example, Afghanistan, Iraq, and the Sudan are each expected have populations over 70 million, or likely more than any nation in the EU at that time.
How many of these migrants would qualify for asylum is difficult to say. On the one hand, a German minister announced in late 2015 that Afghanistan had “received a lot of aid” and that people should just “stay there,” the implication being that few Afghans met the legal standard for asylum. On the other hand, credible observers report that over the past 30 years roughly three quarters of Afghans have been forcibly evicted from their homes, for one reason or another, and that half the population would have a credible legal claim for asylum. Any case would have to be litigated on its particular facts, which can be costly and messy to adjudicate. Consider an Afghan asylum seeker claiming a fear of persecution based on his sexual orientation. Precisely how is a court supposed to resolve that? One method, struck down by the European Court of Justice in 2014, was to show asylum seekers “gay porn” and see if they were aroused. Recently, an English court denied asylum on the basis that the applicant did not walk like a gay person.
Converging Policy, Diverging Rhetoric
At this point, Hungary, Australia, the United States, and the nations of Western Europe, have all adopted broadly similar strategies to frustrate asylum seekers. First and foremost, they have instituted border externalization measures to keep asylum seekers away. They have often construed their treaty obligations to deny asylum to those who have reached safe harbor somewhere else. And they have, at least on an ad hoc basis, demanded compelling, almost unattainable evidence of persecution.
To be sure there are significant differences in implementation and emphasis. But what is most distinctive about Orbán and Trump is not their policies with respect to asylum seekers but their accompanying rhetoric. Trump’s comments about “rapists,” “drug dealers,” and “terrorists” were deemed by many to be not simply inaccurate, but inflammatory. Orbán’s invocation of a Christian heritage under assault reflects a more coherent, and coherently offensive, position.
At least since 2016, the EU’s solution has been to frustrate asylum seekers, while generally eschewing any justifying rhetoric. Although there is a new breed of European leaders who are speaking more openly, my focus here is the “in crowd” of the EU leadership. Whether their approach is a long-term solution is doubtful. It is all well and good to deploy the law as a responsibility-mitigating mechanism, but the question of how to treat strangers in extremis, or claiming to be in extremis, is fundamentally a political and moral question. It cannot be dodged forever by legal formalism.
Australia’s Prime Minister seems to have gone as far as one can go, without forfeiting one’s place in polite society, by talking about an “orderly migration policy.” This contemplates a litany of concerns, such as migrants’ effect on wages and crime, but one must acknowledge that such rhetoric can trail off into the vapid and contestable. The economists will debate whether crime goes up (and how much?) and wages go down (and how little?). More urgently, the NGOs and human rights lawyers will question the morality of denying comfort to strangers in need, even at some cost, given the wealth of many Western nations. Indeed, why is it moral and appropriate to deny admission to a stranger because it might mean higher taxes, but immoral and inappropriate to deny admission to that stranger, because it might jeopardize a nation’s perceived historic destiny? Viktor Orbán has said many things that are rightly criticized. But the claim that Hungary—founded over a millennium ago by the Christian Stephen I—has a deep religious heritage is indisputable. Also indisputable is that Hungarians are united in a Finno-Urgic linguistic bond that is idiosyncratic in Central Europe and rare anywhere in the world.
“The destiny of nations can be no less interesting and poignant than that of individuals,” wrote the Argentinian novelist Jorge Luis Borges. When Dante wrote, “Come see your Rome that weeps,” he presumed that his readers viewed a nation as possessing a distinctive personality worthy of sympathy. Many Western elites today not only reject this vision, but regard its articulation as a moral failing. Whether nations led by such persons will possess the will, in the face of mounting pressures, to preserve themselves is among the paramount political questions of this century.