The Foundations for Indiscriminate Deportation
The big question marks are resources and implementation
Is there any immigration news? Seems quiet.
Just kidding.
As expected, the first 36 hours of Trump 2.0 has seen a burst of orders and announcements related to immigration and citizenship. 50 actions, to be exact, as of this writing. They’re cataloged here, and I’m grateful that others are keeping track so that I don’t have to try to do that on my own.
I’m not going to do two other things.
I’m not going to talk about birthright citizenship. If law still means anything, the courts should do their job on this one. I will enjoy watching the litigation. But I think the 14th Amendment is pretty clear. And if law does not mean anything, why are you wasting time reading a Substack written by a law professor? Be useful and grab a pitchfork.
I’m not going to talk about policies affecting the border or people outside the US, including arriving asylum-seekers and refugees stranded in third countries. That is not because these are not incredibly important, nor because what Trump is doing is not terrifying, tragic and appalling. I’ve devoted much of my career to refugees and asylum-seekers here and abroad. But I think my added value right now is to try to offer some insight on what matters most for immigrants in the interior of the United States. To the people I know in Las Vegas and to those similarly situated around the country.
As expected, Trump’s Department of Homeland Security has expanded expedited removal to the entire country. Last time, he didn’t try this until the third year of his presidency, which thanks to litigation delays and COVID proved too late for it to matter on the ground.
I wrote about expedited removal in my post asking How Will We Know If They Are Serious? This was one of the legal warning signs that they are serious.
This is what scares me most. … Expedited removal allows the US Government to immediately deport people without taking them to Immigration Court. It’s already used on a massive scale at the border for new arrivals. It can be invoked against anyone caught within 100 miles of the border who has not been present for two weeks. That’s already problematic. But it can get worse.
The Immigration and Nationality Act contains a provision allowing the Executive Branch to expand this throughout the entire country. … In principle, most undocumented immigrants should not be vulnerable because by law expedited removal would only apply to people who have been in the country for two years or less. On paper, that is.
The really scary part of expedited removal is exactly why Trump will love it: No Immigration Court. No due process whatsoever. No judge of any kind. No hearing of any kind. How do we know the person should even be deported? An ICE officer will decide. How do we know he or she has been here’s less than two years? An “immigration officer” decides.
In every American mass deportation, including Operation Wetback, US citizens have been deported in large numbers. That’s not an accident. Going massive necessitates skipping safeguards.
We have no real experience with what this kind of expedited removal will mean in practice. ER for new arrivals at the border is very different operationally. But it cannot be good. And if the worst plausible scenarios of a mass deportation play out over the next few years, I would expect expedited removal to have played a major role.
Trump rescinded Biden’s enforcement priorities, which called for ICE to focus on immigrants with serious criminal records. Something that would seem consistent with Trump’s own rhetoric about immigrants who commit crimes. But no. Several other executive orders called for DHS to develop new enforcement priorities. So there is more to come. But we have some experience with this. In Trump 1.0 they basically said all undocumented immigrants are targets by rejecting the idea of prioritization. When no one is a priority, everyone is a potential target.
They also directed the serious law enforcement part of ICE — known as Homeland Security Investigations (HSI) — to focus more on hunting down mom and pop undocumented immigrants. That means less time on what HSI used to focus on, which was human trafficking rings and other major transnational crime. Feel safer?
They rescinded the sensitive locations policy, which had restricted ICE and CBP from trying to arrest immigrants at hospitals, schools and churches.
Trump also declared that we’re under invasion, and took steps toward designated some gangs as terrorist organizations. I think we are going to need to wait a bit to see what the real implications of this will be. But I still feel comfortable saying that the last real invasions of the United States were in 1812 and the 1960s, both by the British.1
What we have in sum is a policy of indiscriminate deportation, which could also pave the way for mass deportation. On paper, any undocumented mom or dad could be targeted by ICE while at a parent-teacher conference or while seeking medical care. It’s scary even in theory, and it is meant to be scary. That’s the psychological warfare aspect. And the idea of going after immigrants with criminal records first? That’s official rescinded.
What Trump 2.0 has done right now is lay down some administrative and regulatory foundations for POSSIBLE actual action. We don’t know what these new policies will look like in practice. We don’t know how ICE and CBP will actually use the tools Trump has given them. And we don’t know if they will have the money, manpower or infrastructure to escalate deportations to a “mass” level. That’s what I’ll be watching for next.
Finally, I know I said I wouldn’t talk about birthright citizenship. But I think it is worth noting that when he was last in office, President Trump spent four long years constantly talking about ending birthright citizenship. But he never actually did anything about it. He just tweeted and blustered. Now he’s done it. It will probably be blocked in court, but this is an objective indicator that Trump 2.0 is different.
Stealing this from my colleague Aubrey Maples. Solid political Dad joke IMHO.
Trump risks alienating a lot of his support if he engages in mass deportation and if that is widely publicized, because mass deportation will hurt innocent and sympathetic people. His attack on birthright citizenship should be quickly shot down in the courts because the language of the 14th Amendment is so clear. His lawyers can't argue that the language is unclear, so apparently they will argue that the reach of the 14th Amendment to recognize citizenship in all native born persons subject to U.S. jurisdiction, was not (when written) intended to reach undocumented migrants. But they can't seriously argue that persons born in the U.S. to undocumented parents, are not subject to U.S. jurisdiction if they reside in the U.S.. Clearly they are, as witnessed by the thousands of children of undocument migrants who attend schools in the U.S., and by those who are prosecuted for crimes in the U.S., etc. They are subject to U.S. jurisdiction unless they are born to diplomats or heads of state. Rather than give a meaning to the 14th
Amendment which contradicts its text, the courts should inform Trump that only an amendment to the Constitution can change that meaning.
Ending the ICE focus on serious criminals leaves to ICE ERO officers the power to decide who to arrest to meet their quotas.
If you had that job, would you choose to risk your life to arrest an armed cartel member or a nanny?