Voters wanted immigration enforcement, but not like this

Many voters elected President Trump to end border chaos. Illegal immigration remains low, but voters’ opinions of his immigration policies as a whole have soured. The reason is that they view Trump’s actions away from the border as just more chaos. Americans aren’t against enforcement. But not like this.

So what’s the root problem — and what’s the real fix?

The public’s perception of chaos stems from the fact that Trump’s policies appear arbitrary. Under President Biden, no one knew why people were getting into the country. Now no one knows why people are getting thrown out. Under Biden, people came illegally or chaotically. Now people are being deported illegally or chaotically. The public cares about order in both directions.

America shouldn’t be doomed to oscillate between two types of chaos. Instead, we need to reembrace the antidote for chaos: the rule of law.

In popular speech, the “rule of law” often just means following whatever the government says. But our nation’s founders meant something else entirely. For them, the rule of law was the opposite of the “rule of men” — which leaves government dictates, and the fate of residents, to the leaders’ whims in the moment.

The founders saw the rule of law as general predictable rules publicly known to and applicable to all. As James Madison wrote, “Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” For Madison, the hallmark of the rule of man was “instability” (i.e. chaos).

The separation of powers provided the Madisonian cure. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he said, “may justly be pronounced the very definition of tyranny” because “the life and liberty of the subject would be exposed to arbitrary control.” Arbitrariness is just chaos by another name.

During Biden’s term, much of the border chaos traces to the fact that immigrants never really knew what the rule was. On paper, it was illegal to cross between ports and legal to cross at them. In reality, at least from 2021 to 2023, ports were mostly closed, and about half of the illegal crossers were allowed to stay.

Moreover, the actual determination of who got in and who got tossed was made by agents at the border, not based on asylum statutes passed by Congress or any other known rule. This was the rule of man, not the rule of law, and the chaotic results were readily apparent.

Unfortunately, the chaos has not dissipated — it’s only moved locations: from the border to the interior. The basic framework of Trump’s interior enforcement is that it is whimsical and arbitrary. It is not about “merit,” not about public safety threats, not even about people here illegally or about “noncitizens,” as Trump is seeking to strip U.S. citizenship from people and remove U.S. citizenship for many U.S.-born children.

There’s no articulable rule. Consider that Trump is arresting highly educated, lawful immigrant students for op-eds written long ago. Setting aside the 1st Amendment, the founders would be — or actually were — equally aghast at the “subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments.”

The rule of man is back, and it’s as chaotic as ever.

Trump has empowered agents to strip immigrants of lawful status and immediately deport them. They are even arresting lawful immigrants based on secret criteria (like forbidden tattoos) and sending them without due process to a foreign prison. Judge. Jury. Executioner. R.I.P. Madison’s definition of tyranny.

All this is unnecessary. Restoring the rule of law can end the chaos. That starts with clear, consistent and predictable rules. The immigration rules were, before Trump, notoriously known as “second only to the Internal Revenue Code in complexity.” The policies rapidly change from administration to administration and even from month to month.

The U.S. needs straightforward, transparent policies on immigration. When the government accuses someone of being in violation of the law, clear rules would enable rapid implementation in accordance with due process. This enforcement would naturally channel people into legal ways to enter and live in the United States. Once someone is granted a legal way to enter, that decision should not be reopened — absent some significant new facts.

America can end the immigration chaos. This vision of an immigration policy animated by the rule of law is achievable, but no one in government has focused on achieving it.

David J. Bier is the director of immigration studies at the Cato Institute.