Courts are getting in the way for a host of reasons. In some cases, Trump is pushing the boundaries of executive power. In others, his methods run afoul of basic due process standards. Those obstacles are likely to remain no matter what Congress does.
However, neither Trump nor Republicans should lose sight of their goals. Trump voters, including the many non-Republicans who switched their support to him from 2020, want the illegal migration problem solved for good.
Step one is stopping the inflow across the southern border. Trump has largely solved that problem through executive order; border crossings have dropped precipitously since his inauguration.
Courts have previously upheld executive discretion in enforcing our immigration laws as they pertain to policing border crossings. Thus, this part of the immigration agenda is likely to stand.
Step two is expelling the millions of people who are here illegally. Part of that is using Immigration and Customs Enforcement to detain and deport people directly. That’s what border czar Tom Homan has been doing, but each person that ICE agents arrest must have their day in court to prove they have no legal right to stay.
That’s what courts insist upon, and they are within their bounds to do so.
Direct deportation also suffers from a lack of resources. There aren’t enough officers, immigration judges, or detention centers to rapidly remove people who have been judged to be illegally in the country.
Congressional leaders already plan to deal with that via reconciliation, saying they will spend tens of billions of dollars to provide those resources. That will surely help, but it will take time to appropriate that money and more time to staff and build the necessary facilities.
This will leave Trump and the GOP in a quandary if that’s all they do. Millions of people who shouldn’t be here will settle in, take jobs, perhaps form families. They will become entrenched, making it much harder to remove them even if a court finds they have no legal right to stay.
Trump’s challenge is analogous to dealing with flood waters after a dam has broken. His border policies have closed the breach, but pumping the water out will take too long, given the legal and administrative hurdles in his way.
That leaves step three: incentivize illegal immigrants to leave on their own. The best way to do that is to dry up their ability to work in the United States. That is something that budget reconciliation can help with, if GOP leaders are willing to get creative.
Reconciliation rules give those leaders great leeway to include measures that pertain to the expenditure of public funds or rewriting tax laws. The reconciliation measure can’t primarily make substantive changes to laws, but the changes it can make could make it significantly harder for illegal immigrants to stay.
Reconciliation is crucial because it is the only measure immune to a Senate filibuster. It’s the one chance Republicans have to pass laws without giving the store to Democrats. That means getting creative is in their clear interest.
There are many things they could do that would increase the speed at which illegal immigrants could leave the country.
One idea is to change the tax code to allow businesses to deduct employee expenses only if those employees are here legally. Right now, employers can deduct wages, benefits, and payroll taxes for anyone on their payroll regardless of legal status. That means the taxpayer is indirectly subsidizing the employment of illegal aliens.
Current immigration law does not require employers to verify that their employees are legally able to work in the U.S. They are required to obtain documents that purport to show such ability, but they are not required to check whether those documents are valid. Thus, the problem.
Efforts to require such verification, perhaps by using the federal government’s E-Verify system, would require passage of a law subject to a Senate filibuster. Democrats have never been willing to agree to permit this.
But imagine if employers knew they could no longer deduct expenses for illegal workers. They would be incentivized to use E-Verify because doing so would ensure they are not submitting incorrect tax forms. Dry up the jobs, and illegal immigrants will start to leave.
Congress could also direct the Internal Revenue Service to prioritize auditing businesses for compliance as part of its regular enforcement of the tax laws. Fear of getting audited and hit with a potentially ruinous bill for back taxes will likely make businesses think twice about turning a blind eye to illegal workers.
Employers’ groups might howl, but they will do that anyway if mass deportations start to occur. It is better to use the carrot of tax law than the stick of ICE agents coming into fast food restaurants and other workplaces nationwide to enforce the law.
Republicans could also offer another carrot to employers: a subsidy to use E-Verify. A tax deduction or credit to offset additional expenses would sweeten the pot and help mollify angry bosses.
Congress should also go after the money that illegal workers send home via wire transfers. Known as remittances, these payments send tens of billions of dollars out of the country each year. That’s American money that isn’t used to support investment or consumption in this country.
Trump has instituted import tariffs to encourage employers to set up shop in America to capture the American consumer market. A 10% or 20% tax on remittances would be another way to accomplish the same goal.
This provision would need to be carefully drafted to avoid taxing the normal flow of funds among businesses or people sending money back and forth in the normal course of life. We don’t want to penalize Apple for transferring funds to its subsidiaries or a parent sending a stipend to their child studying at an American university.
A possible workaround could be requiring pre-registration for firms or individuals who want to avoid the tax. One can imagine exempting companies organized as C-corporations (most large companies) or whose securities are traded on a regulated exchange. Exemptions could also apply to anyone with a green card, student visa, or otherwise legal work visa. A financial entity or wiring agent asked to transmit the money could also be asked to use E-Verify to check the legal status of anyone who attempts to wire funds overseas.
The ways to do this are legion. The point is to send a clear message to people who are working here illegally to support their families at home: if you do this, it’s going to cost you, big time.
I’m sure there are many other ways to use tax law and the spending power to create incentives for illegal aliens to go home. Republicans who are serious about ending the illegal migrant problem need to put on their thinking caps and get to work.
This approach comes with risks. The Senate Parliamentarian could rule that some of these ideas are really substantive changes to law rather than legitimate fiscal measures, forcing their removal from the package. But it’s better to force those decisions than sit back and let Trump’s signature domestic initiative flounder because of predictable legal and administrative obstacles.
Doing this has loads of upside, too. Voters squeamish about the inevitable problems with arresting and deporting people would likely back these ideas. It’s clear that the GOP base and the marginal Trump voter are tired of the crime, competition for jobs, and chaos that the illegal migration crisis is causing. Putting the burden on employers and others to simply do the right thing is something they will cheer.
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This approach also damages Democratic efforts to cast the tax bill as a billionaire bailout fund. Combined with tax cuts for working- and middle-class families, Republicans could legitimately tout a tax and spending package that focuses attention on the illegal employment problem as a pro-American worker measure. Vice President JD Vance would probably love to go on the Sunday shows to back this measure to the hilt.
Trump and Republicans were elected to primarily do two things: end illegal migration and get the economy moving again for ordinary folks. Trump is trying to do both, but can’t do it alone. He needs Congress to take the problem as seriously as he does and get behind his goals with creative solutions. Thinking of the reconciliation package as a pro-American worker, anti-illegal worker bill, is a great place to start.
Henry Olsen is a senior fellow at the Ethics and Public Policy Center and a veteran political analyst. He hosts Beyond the Polls, a podcast about American elections and campaigns.
