There is a genuine case to be made for innovations in immigration policy, including stronger enforcement, in order to build a truly effective migration management system. President Trump’s sweeping initiatives try to wear that mantle, but before long his actions will be exposed as counterproductive. His executive orders disguise difficulties in implementation, but, more importantly, gratuitous harshness in their basic design will continually feed resistance in crucial quarters.
Trump’s first-week immigration moves embraced “shock and awe” (a phrase apparently used by Jeff Sessions in internal debates) as the key to restoring effective immigration control. Intimidation has certainly resulted, as deep concern and occasional panic ricochet through immigrant communities. Even as we now move into a second phase, where an administration moderately chastened by judicial rebuke brings forth new directives, the basic flavor hasn’t changed.
The two memoranda issued on Monday by Homeland Security Secretary John Kelly, to implement the President’s border enforcement and interior enforcement orders, are certainly more careful. But they contain numerous elements seemingly designed to convince violators that imminent removal looms. Highlights include:
-Greatly expanded enforcement priorities, broadening the notion of “criminal alien” to include many people never formally charged with a crime. One line in the Kelly order even seems to encourage action against anyone encountered by a DHS agent who appears likely to be in violation of any immigration law.
-The impending addition of 5,000 Border Patrol agents and 10,000 new Immigration and Customs Enforcement agents, while increasing detention capacity.
-Expanding to their maximum reach certain summary removal procedures that bypass the immigration courts.
-The enlistment of state and local law enforcement officers in enforcing the immigration laws, partly through new formal agreements delegating federal authority to investigate and apprehend (known as 287(g) agreements), and partly by threatening federal funding cutoffs so as to frighten locals into ending any “sanctuary city” policies.
This macho outward design evidently aims to deter future violators and perhaps evoke waves of self-deportation. But a careful look under the hood reveals weaknesses that will become apparent over time.
First, many of the crucial steps are dependent on added resources, both human and monetary. Added Border Patrol and ICE agents are by no means a done deal, even with Republicans controlling both houses of Congress.
Increasing the number of ICE agents, though definitely worthwhile, is particularly likely to meet resistance. ICE concentrates on interior enforcement, which is far more likely than border action to disrupt businesses that can wield political muscle — and to rile affected communities. And even if Congress funds expansion, both agencies are already struggling to recruit new agents as the economy improves.
Second, many elements of Kelly’s plan will attract vigorous court challenges. A pattern of judicial resistance to Trump’s immigration moves is already emerging, compounded by the President’s penchant for insulting the judiciary when a ruling goes against him.
Third, even with far greater federal enthusiasm for new 287(g) agreements, the President can’t call them into existence unilaterally. At its height, the program had fewer than 70 participating jurisdictions. Others were deterred by cost and especially by local political opposition.
Fourth, the impending demise of sanctuary cities is greatly exaggerated. (The term is imprecise, but generally refers to jurisdictions that refuse or limit cooperation in turning over detainees upon ICE request.) Trump lacks authority to cut off most forms of federal assistance for failure to cooperate with ICE. In principle, Congress could give him broader power, but even then the Constitution significantly limits the use of funding cutoffs to coerce local action.
Meanwhile, separate court decisions have opened the prospect of massive damages awards against local jurisdictions if they detain based on an ICE request later found to lack a sound foundation.
This last element, relations with local communities, epitomizes the deepest flaw in the Trump strategy. President Obama’s DHS secretary, Jeh Johnson, also wanted to build better cooperation with local law enforcement after opposition ballooned during Obama’s first term.
He didn’t take the easy path. He courageously insisted, over much opposition from immigrant advocates and local jurisdictions, on retaining a system that immediately checks fingerprints of all arrested individuals, citizen or foreigner, against ICE databases, at the front end — thus capturing early information genuinely needed for wise enforcement decisions.
Instead he addressed local concerns by focusing on the back end of the fingerprint-sharing process. He limited ICE detainer requests to cases involving serious criminal offenses, and he carefully reframed the requests to minimize potential local liability for damages.
Johnson was making headway, winning better cooperation from 21 of the 25 jurisdictions that had been most resistant to ICE detainers.
Trump could have chosen to build on that progress. Instead, his executive order ostentatiously terminated Johnson’s initiative while reviving by name a previous program, called Secure Communities, which had become notoriously unpopular. Trump thus instantly maximized resistance from those states, cities and local law enforcement agencies already skeptical of any engagement in immigration enforcement.
If you really wanted to build a sustainable and effective enforcement regime, you would seek to expand the circle of popular support for carefully designed enforcement initiatives, primarily targeting recent violators — not people with long residence and deep ties in their local communities. The focus would be the creation of a forward-looking culture of compliance, not vendettas based on long-past transgressions.
But of course, the theme guiding the Trump actions is crackdown, not cooperation. Such toughness will certainly have its fans. But it will also feed an expanding culture of resistance in many key communities and organizations, drawing constant nourishment from reports of sympathetic individuals newly ensnared. Polarization is deepening.
It didn’t have to be this way. We are much farther from a sustainably effective migration enforcement system than we were just five weeks ago.
Martin is professor emeritus at the University of Virginia School of Law. He served as principal deputy general counsel of the U.S. Department of Homeland Security 2009 through 2010, and as general counsel of the Immigration and Naturalization Service 1995 to 1998.
