The biggest single-day changes to immigration policy in recent memory
On Wednesday, President Donald Trump signed a pair of executive orders that constitute the biggest change to federal immigration policy in a single day in recent memory.
Trump signed an order that directs the Department of Homeland Security to begin construction on a wall between the US and Mexico — while cracking down on people who cross the border now, many of whom are children and families seeking asylum from Central America. A second order, also signed Wednesday, began to loosen restrictions on whom immigration agents can apprehend and deport within the United States — allowing immigration agents to adopt a broader definition of “criminal” to deport more people faster.
It has been widely reported that he will sign executive orders later this week that would pause all refugee admissions to the US for several months, and block all arrivals from seven majority-Muslim countries.
Trump’s actions today answer one question that has circled around him since the earliest days of his campaign: Should we take him literally? His early executive orders, especially these on immigration, suggest that Trump is serious about changing US policy to fulfill the strident immigration commitments at the center of his policy agenda. Already, he has laid out a policy agenda that is aggressive — even hostile — toward many unauthorized immigrants within the US, both those who have crossed the border seeking asylum and those who have lived here for years.
During his presidential campaign, Trump promised that the US would build a wall on its border with Mexico and Mexico would pay for it.
He’s still working on the second part, but he’s moving ahead on the first. The executive order he signed Wednesday directed the Department of Homeland Security to “identify and, to the extent permitted by law, allocate all Federal funds” that could be used to build the wall.
President Trump has the authority to do this — in fact, he didn’t need to use a formal executive order to do it. (He could have just sent a memo.) The executive branch has the ability to move funds around within existing congressional appropriations; as long as the president isn’t asking an executive branch agency for more than Congress has allocated for a particular budget line, he can send Congress a letter notifying them of the change in plans.
nder a law passed in 2006 called the Secure Fence Act, the US government is responsible for maintaining a physical barrier along at least 650 miles of the US/Mexico border. The original law required a double-layer fence, but Congress later amended it to let the Department of Homeland Security determine what kind of barrier was necessary in any given location.
Currently, most of those 650 miles are covered by a single-layer fence. Trump’s instruction to start on a wall is a use of the Secure Fence Act in the other direction — to push for a thicker barrier than Congress originally ordered.
This is just the start. No one expects DHS Secretary John Kelly to find enough money to complete a wall across the whole US-Mexico border. President Trump is expected to ask Congress to appropriate additional funds for the wall when they pass a DHS funding bill in May (something congressional Democrats are likely to resist). The executive order is more of a down payment — or a demonstration to Congress that the Trump administration is dead serious about the wall, and they should be too.
The executive order attempts to clear away some of the other obstacles associated with building a massive structure across hundreds of miles of border; for example, it allows federal agents to access border land for security reasons, which could make it harder to sue the Trump administration for violating environmental regulations by building on protected land.
But Trump can’t clear away all the obstacles with an executive order. He’ll still have to deal with Mexico.
A wall on the US/Mexico border would be a symbolic slap in the face to Mexico, and would likely disrupt the goods and people that legally flow across the border every day. (To stop at least some of the wall from being constructed, the Mexican government could leverage a 1970 treaty that prevents the US from building anything that would disrupt the flow of the rivers that define the border along part of Texas.)
Then there’s the question of how Trump could make Mexico pay for it: He has insisted he’ll force Mexico to reimburse the US for the cost of construction, and indicated that he could use taxes and fees on Mexicans and Mexican Americans (such as a tax on remittances) to pressure Mexico to pony up the funds.
The Mexican government is extremely unpopular right now, and very much needs a good relationship with the US to help stabilize its flailing currency. The newly appointed foreign minister, Luis Videgaray, was named partly because of his good relationship with Trump and his advisers. (Videgaray helped arrange Trump’s visit to Mexico as a candidate last year.)
But Trump needs Mexico too. The purpose of the executive order is to reduce the number of people entering the US who don’t already have papers — but the only way the US has found to seriously drive down the number of Central American asylum seekers is for Mexico to help in apprehending them en route (and sometimes granting them asylum in Mexico).
The executive order requires DHS to detail all aid it’s giving to Mexico. That could be a forerunner to presenting Mexico with a bill for the wall. But if DHS interprets the executive order to mean it should send as little money as possible to Mexico — even to support efforts to keep Central Americans from coming to the US — that might undermine other Trump goals.
Videgaray is coming to Washington on Wednesday to help plan for a meeting between Trump and Mexican President Enrique Peña Nieto later in January. He’ll arrive to news that President Trump has ordered construction to start on the wall his country very much does not want to see built.
Everyone caught crossing the border — including families seeking asylum — will be detained
As a candidate, Trump (like many immigration hawks before him) promised to end “catch and release” of immigrants caught by Border Patrol agents. In a particularly dramatic fashion, he’s made good on his word. This afternoon, he signed an executive order requiring Customs and Border Protection to detain every unauthorized immigrant they catch crossing the border.
Prior to Trump’s order, CBP had several options once they caught an immigrant on the border without papers. They could deport her immediately — if she meets certain criteria, like having been deported before. They could release her if they trust she’ll show up to her asylum interview or court date (this makes sense for asylum seekers, who have every reason to do what’s required to actually get asylum). They could use an ankle bracelet or other monitoring system to keep track of her before her court date. Or they could keep her in detention.
President Trump just eliminated all but the first and last options. And he added another option: Immigrants can be returned to Mexico even while they’re waiting for an immigration court to process their case.
The order might seem reasonable; after all, the only way to make 100 percent sure an immigrant doesn’t abscond into the US without papers is to keep her in custody. But in practice, it’s hugely problematic because of who’s coming over the border right now.
According to Customs and Border Protection, nearly half of all unauthorized immigrants apprehended crossing the border in the fall of 2016 (from October to December) were either unaccompanied minors or families traveling together. In most cases, these children and families came from Central America; in many cases, they were seeking asylum from violence there.
Immigrants in detention have a much harder time getting a fair hearing, a lawyer, or time to make their case. This means the government is more likely to send a person who should have qualified for asylum back to her home country, putting her in mortal danger. (It’s a violation of international law for countries to return people to places where they’re unsafe.)
Meanwhile, the government isn’t allowed to keep children in immigration detention indefinitely. The Obama administration’s attempts to expand family detention after the border crisis of 2014 ran into difficulties in state and federal court; hundreds of families got released at once in December, after a Texas judge found that the government was violating state law. The executive order instructs DHS to detain people “to the extent permitted by law” — in the case of children and families, that extent isn’t that great.
It’s also not clear where the federal government is going to put all the people being detained. Customs and Border Protection has already had to create “tent cities” in Texas to accommodate new arrivals, and that’s when it had options in addition to detaining them. Furthermore, detaining immigrants isn’t CBP’s job; within 72 hours, they’re supposed to send them elsewhere. Those who get detained are sent to detention centers run by Immigration and Customs Enforcement. But ICE doesn’t have the detention capacity to take on tens of thousands more immigrants, and it’s going to take time — and the approval of Congress — to build up that capacity.
Trump is expanding the definition of what makes an immigrant a “criminal” and therefore a priority for deportation
By the end of the Obama administration, unauthorized immigrants living in the US who hadn’t been convicted of crimes were at pretty low risk of being deported. But that was a fairly recent development. In the last years of George W. Bush’s presidency, and the first several years of Obama’s, aggressive enforcement in the interior of the US — from high-profile workplace raids under Bush to widespread cooperation with local law enforcement under Obama — led to the deportation of hundreds of thousands of immigrants living in the United States each year, many of them people who hadn’t committed a crime while living here.
Trump and his administration have made two promises: They’re going to go after criminals first, and they’re going to restore “power and responsibility” to immigration agents to determine which immigrants to deport. These two promises are in conflict: The Obama administration’s efforts to target convicted criminals were exactly what led immigration agents to feel that they weren’t being allowed to do their jobs.
The executive order resolves the conflict. It makes it easier for immigration agents to consider unauthorized immigrants as criminals — and easier to deport them.
For one thing, the Trump administration is laying the groundwork to keep raising awareness of unauthorized immigrants who commit crimes as a way to advocate for harsher enforcement: The executive order creates an office to advocate for victims of crimes committed by unauthorized immigrants. But it goes way beyond symbolism.
Instead of focusing on deporting convicted criminals, the executive order tells ICE agents to focus on immigrants who’ve been convicted, charged, or “have committed acts that constitute a chargeable criminal offense.” Those “offenses” include immigration crimes (illegal entry and reentry are both criminal offenses) and things that are part and parcel of living in the US as an unauthorized immigrant, like driving without a license. (Indeed, the order prioritizes people who have engaged in “fraud or willful misrepresentation in connection with any official matter,” which could apply to anyone who applies for a job and pays taxes under a fake Social Security number.) Furthermore, the executive order tells immigration agents to prioritize anyone they feel is a “risk to public safety or national security” even if they haven’t done any of those things — which is to say, anyone immigration agents want to deport.
And ICE will have more resources to carry this out. The executive order triples the number of agents in ICE’s Enforcement and Removal Operations office. Those agents will be able to resume use of the tool that made it easiest for them to pick up immigrants involved in the criminal justice system. Trump is resurrecting the Obama-era Secure Communities program, which automatically checked immigration databases to identify people checked into local jails, then allowed ICE agents to ask local officials to hand over any immigrant they wanted to deport.
Secure Communities was initially touted by the Obama administration as a way to identify and deport “criminal aliens,” but as it expanded it became clear that it was also being used to deport immigrants who hadn’t done anything more serious than commit a traffic offense (or hadn’t done anything at all). So the Obama administration replaced Secure Communities with the Priority Enforcement Program in 2014, which limited when ICE agents got notified about an immigrant in a jail and when they could request to take him into custody.
Trump’s decision to go back to the broader Secure Communities program does two things. It gives ICE agents a broader pool of immigrants to draw from for potential detention and deportation. And it signals that any immigrant caught up in the criminal justice system — whether or not they’re ultimately convicted of a crime — will be considered a “criminal” by this administration. If President Trump is going to find and deport 2 to 3 million criminal unauthorized immigrants, when nowhere near that number are actually convicted criminals, this is how he’d do it.
Sanctuary cities aren’t getting defunded just yet
One of the Trump administration’s most celebrated promises — defunding “sanctuary cities” that limit local cooperation with the federal government — makes an appearance in the executive order. But it doesn’t actually defund anything just yet. Instead, it tells the secretary of homeland security and the attorney general to make sure that no jurisdiction getting federal grants is getting in the way of law enforcement, and lets the attorney general pursue enforcement actions against jurisdictions that do.
There’s a reason for the relative timidity: It’s unconstitutional for the federal government to force local governments to enforce federal law. The federal government can’t use grants to coerce state and local governments into doing whatever the president wants. This is why the Affordable Care Act’s Medicaid expansion was struck down: It tried to force states to expand Medicaid eligibility as a condition to getting federal Medicaid funds. So the executive action leaves it up to the attorney general and DHS to figure out how it can defund sanctuary cities without being coercive.
While there’s no bright line for when a condition counts as coercive, there are some standards. The condition has to be relevant to the purpose of the grant. And it’s more likely to be found unconstitutional if it puts new conditions on existing funds.
The Trump administration might try to get around these obstacles by claiming that it’s illegal for cities in violation of federal law to get federal grants. But to do that, it will have to limit defunding to cities that actively prevent information from getting shared with the federal government — not just cities that don’t always notify federal immigration agents whenever police pick up an unauthorized immigrant.
Dara Lind, January 25, 2017