Friday, January 27, 2017

Trump's Executive Orders: I Told You So


I cannot resist saying that "I told you so."  On January 2, several weeks before President Trump's immigration executive orders, I suggested in a post on The Conversation that the incoming administration would

1.  Focus on crime-based removals:  President Trump, like President Obama, seems focused on crime-based removals.  That is the direction of his executive orders.  The Priority Enforcement Program, which focuses on the removal of noncitizens convicted of "serious crime," has been abolished.  The broader Secure Communities Program, which President Obama dismantled in November 2014, is making a comeback and will likely lead to an immediate increase in removal numbers.  Recall also that, during the Obama years, there was controversy about whether state and local cooperation with Secure Communities was voluntary or mandatory.   The program requires information between state and local law enforcement authorities and federal immigration agencies.

2.  Increase State and Local Assistance in Federal Immigration Enforcement:  President Trump orders seek to facilitate state and local cooperation in immigration enforcement. 

First, his order allows for cutting off federal funds to "sanctuary cities" that violate federal law with respect too information sharing and other assistance with federal immigration enforcement. Harvard's Noah Feldman has suggested that the efforts to defund "sanctuary cities" may be subject to constitutional challenge. 

Second, he has proposed bringing back "287g" agreements, which are authorized by Immigration and Nationality Act § 287(g).  Such agreements between state and local governments and the U.S. government allow for federal training of state and local law enforcement in federal immigration enforcement and enlists state and local police in immigration enforcement activities.  287g agreements were popular in the Bush years but were largely dismantled by the Obama administration.

3.  More Immigrant Detention:  President Trump's orders make it clear that, as promised during the campaign, he will increase the detention of immigrants pending removal and will eliminate "catch and release."  President Obama used detention liberally, including with respect to Central American asylum applicants.  President Trump will build on those policies.  While increasing immigration enforcement, he has stated that he plans to build detention facilities in the US/Mexico border region.  The private detention industry stock literally has gone up.

And, as I suggested might be the case, the executive orders do not target the Deferred Action for Childhood Arrivals program or bring back workplace raids.  Both of these policy choices would provoke a strong political reaction, a reaction that focusing on "criminal aliens" does not. 

Just as I predicted, President Trump has started off by focusing on crime-based removals in the nation's immigration enforcement makeover.  The orders also are likely to lead to more construction of the "border wall," which has real symbolic value and uncertain enforcement benefits.    And we may see an order -- a draft of which has been floated -- directed at terrorist activity.  President Trump definitely is not finished with respect to immigration.


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