from Renewing America

Trump, DHS and Immigration: The New Memos That Ignore Political Realities

February 21, 2017

Blog Post
Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

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A nation’s laws are not handed down from on high – they are the creation of flawed human beings working through flawed political processes. Successful political leaders understand this reality, and try to work within its limitations. Those who ignore it risk creating damaging social conflict. And that is what the Trump administration is risking with its new approach to enforcing U.S. immigration laws, which were outlined in a series of memos just released under the signature of General John Kelly, the new secretary of the Department of Homeland Security.

The short version of the memos and the further explanation offered today by DHS is this – the law is the law, and it is going to be enforced. No more “prosecutorial discretion” of the sort used by the Obama administration to deport convicted criminals while leaving the undocumented single mothers and the Little League coaches alone. Illegal means illegal – if you are in the United States unlawfully, you will be removed. What’s not to understand?

But what Secretary Kelly and the Trump administration fail to understand is that enforcing the letter of U.S. immigration laws – many of which are half a century or more out-of-date and were often poorly drafted to start – does not enjoy widespread support in this country. The compromise that has existed since at least the mid-1990s – toughening the border to deter illegal entry, removing illegal immigrants who pose a genuine threat, while mostly leaving the hard-working ones alone – has been messy but has worked tolerably well. And it accurately reflected the country’s ambivalence. There was not sufficient public support for a broad legalization, but neither is there support for a mass deportation campaign aimed at the country’s 11 million illegal migrants, many of whom have been here for decades.

Of the two, polls suggest much greater support for legalization. President Obama tried to ride that support to persuade Congress to pass a comprehensive reform of the nation’s immigration laws, including legalization. He came very close – winning a bipartisan 68-32 vote in the Senate in 2013. He attemped to win votes from enforcement-minded Republicans by ramping up the number of deportations to record levels of more than 400,000 per year – earning the moniker “deporter-in-chief” from immigration advocates. Yet he still fell short in the Republican-controlled House, which refused to take up the bill.

Obama also moved on his own, implementing through executive order the Deferred Action for Childhood Arrivals (DACA) program to provide temporary legal status and work permits for those brought illegally to the United States as minors. While arguably an abuse of executive authority, Obama protected what was the most sympathetic class of unauthorized migrants – those brought here by their parents as children. President Trump has so far shown no willingness to tear up that order, aware presumably of the angry backlash it would generate.

Obama tried to go further after the collapse of the effort in Congress – issuing the Deferred Action for Parents of Americans (DAPA) order, which would have extended similar protections to the parents of U.S.-born children. Politically, that was a bridge too far, and quickly resulted in a lawsuit supported by 26 states. A Texas judge blocked implementation, and when he was upheld by the appeals court and by a divided Supreme Court, the Obama administration backed down.

The Obama administration ended much where it had begun – with continued efforts to bolster border enforcement, and a deportation policy focused on serious criminals.

Now the Trump administration, acting on the narrowest of possible mandates, has decided that Americans are ready for a radical move to tougher enforcement. The memos signed by Secretary Kelly show a breathtaking audacity. Among the highlights:

• DHS plans to hire 10,000 new Immigration and Customs Enforcement (ICE) agents, nearly doubling the size the agency responsible for arresting and removing illegal migrants.

• The administration plans to all but eliminate “prosecutorial discretion.” Instead, “all those in violation of immigration law” now face the likelihood of removal if encountered by law enforcement.

• DHS plans to hire another 5,000 Border Patrol agents in order to “effectively detect, track and apprehend all aliens illegally entering the United States.” No one with serious knowledge of the border region believes that such a 100 percent apprehension rate is remotely plausible.

• DHS plans to crack down on asylum seekers from the violent Northern Triangle countries of Central America, who are now arriving at the border in numbers that approach illegal entries from Mexico. DHS is threatening, for example, to track down and prosecute parents in the United States who hire smugglers to free their kids from the threats they face in Central America.

These are only a sprinkling of the proposed measures, all of which promise a broad crackdown on those in the United States illegally, and a far more aggressive effort to keep out not just those trying to enter the country illegally but those fleeing violence and persecution as well.

What the Kelly memos guarantee is widespread resistance. Fortunately, there are many obstacles. Congress will need to appropriate the enormous funds that will be needed to finance the expensive build-up Kelly has proposed. The government will need far more immigration judges and it will be difficult to fill that need quickly. State governments and civil rights groups will challenge the measures in the courts. Farmers that rely on immigrant labor will protest. Cities that are home to most of the nation’s unauthorized immigrants will resist, as will police forces that must work with immigrant communities, and churches that shelter migrants out of religious conviction. Together, there are many ways to resist a larger and more aggressive federal government determined to enforce the letter of the nation’s broken immigration laws.

“The law is the law” makes a nice sound bite. But it does not reflect the political reality of the immigration issue. Past presidents have learned that lesson. Trump will too.

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