Donald Trump made immigration restriction central to his candidacy for the Presidency of the United States. His “America first” approach stressed immigration as national security and economic threats. Like Presidents George W. Bush and Barack Obama before him, President Trump will learn that making immigration priorities into official action means navigating the separation of powers: border walls and law enforcement come with steep price tags and require approval from Congress. Deporting 2-3 million people would require expanded interior enforcement (enforcement of immigration and customs laws by agents beyond the U.S. borderlands). The last two administrations expanded interior enforcement capabilities with some assistance from state and local police. As president, Trump will inherit a massive immigration enforcement complex – but he will also inherit intragovernmental conflicts that have flared over the last decade as state and local officials and law enforcement demand a say on who resides in their communities and what protections might be afforded to them.
Executive Immigration Power and Its Limits: Learning from the Recent Past
Donald Trump can accomplish a lot without Congress: consider that George W. Bush and Barack Obama each administered the development of federal policing capabilities, and deportation levels that rose under President Bush surged under President Obama.
Each presided over agencies empowered successively by the 1995 Antiterrorism and Effective Death Penalty Act, and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The creation of the Department of Homeland Security (DHS) in 2002, consolidated federal law enforcement agencies under a single agency expanded to fight terrorism, and also boosted the powers of federal law enforcement.
In this context, Immigration and Customs Enforcement (ICE) piloted the Secure Communities program. Designed to focus policing on capture and deportation of terrorists, violent felons, gang members, and repeat immigration law violations, Secure Communities’ reach was broad and deep: it generated hundreds of thousands of deportations (over 400,000 at its peak in 2012), but only a quarter of these involved violent offenders. Under heavy criticism from local law enforcement and immigrants’ rights advocates, President Obama used his authority to end the program and redirect DHS priorities in 2014; he also used formal executive actions in 2012 to provide temporary reprieve for some classes of unauthorized immigrants: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Lawful Aliens (DAPA). As neither of these are law, both could be negated via executive action from Trump.[1]
While both the Bush and Obama administrations demonstrate the considerable power presidents wield over immigration policy, that power is not absolute, even with a Republican-controlled Congress. Incoming DHS Secretary John F. Kelly will head an agency rife with managerial and budgetary pitfalls. In Congress, he will likely face criticism from fiscal conservatives and small-government Republicans, even for those areas that the legislature (under Republican control for two years now) has readily funded. Should the DHS Secretary need to carry out more deportations to meet Trump’s stated goals, he will inevitably need to demand more money, quickly vet and hire more personnel, and build and/or contract with more detention facilities to hold migrants as they await already long processing times until they are legally judged deportable, and then until their actual removal.[2]
The DHS has weathered Congress’s cuts to federal agencies relatively well, but it has faced operational cuts as demands on its resources multiplied. But strained budgets are not the only problem facing the new DHS secretary. Even with a 2014 mandate and discretionary budget increase from Congress to hire thousands more agents, DHS has yet to meet its hiring goals: recruitment remains problematic for an agency plagued by low morale, high attrition rates, and overwhelmed personnel—particularly in the southern border sectors—due to the increased number of migrants from Central America seeking refuge from violence. Outgoing Secretary of Homeland Security Jeh Johnson testified last March that its border enforcement, anti-terrorism, cybersecurity and interior enforcement mandates strained current resources and exceeded personnel and budget allotments through FY 2017.
Cities and States Demand Control
Trump already faces vocal challenges from governors and mayors about his enforcement proposals, and the context is further complicated by state and local laws that vary according to how accommodating of immigrants American communities wish to be. The absence of a national integration policy, coupled with the vacuum left by congressional failure to achieve reform, has left states and municipalities to devise their own approaches. The result is a complicated patchwork of overlapping and contradictory laws that call into question federal jurisdiction beyond strict law enforcement.
Congress created statutory mechanisms in 1996 that allowed local law enforcement to assist federal agencies in the investigation, reporting, and detention of immigrants. However, state and local participation has varied considerably across and within states as some police chiefs refuse to jeopardize community relations with immigrant residents.[3] In anticipation of efforts by the incoming Trump administration to coopt their police forces for accelerated deportation goals, the mayors of Chicago, Minneapolis and Newark have joined New York Mayor Bill de Blasio in promising non-cooperation.
Immigration enforcement is not the only source of discord between the national and subnational governments: since 2005, the number of states passing laws addressing immigrant integration skyrocketed. Often, state legislation obligates state and local officials to carry out federal law, but a growing number of states and municipalities have rejected federal laws and administrative priorities altogether. California, Maryland and New Mexico, for example, are documenting the undocumented by offering driver’s licenses to immigrant residents regardless of status; New York City is the largest to offer municipal ID to all residents whether immigrant or native-born.
While some cities and towns have been open to resettling refugees or assisting with the influx of unaccompanied minors from Central America, 30 governors have announced that they will not allow the federal government to place Syrian refugees in their states. Alabama and South Carolina have restricted unauthorized immigrant access to post-secondary education, but states such as Washington, Texas, Nebraska and Minnesota are incorporating their undocumented students, allowing admissions and even access to some forms of state-funded financial aid. These are just four of the 21 states that have employed an array of methods to open their colleges and universities to all—and to do so despite federal laws prohibiting colleges and universities receiving federal funding from granting aid to such students.[4]
The new president has promised a tough stance against unauthorized immigrants living in the U.S., but the Chief Executive needs cooperation from Congress. While a Republican-dominated Congress will be more likely to support efforts that focus on border and interior enforcement, Trump will still have to work with Congress to ensure his plans are funded. This could prove easier said than done. House Speaker Paul Ryan (R-WI) has his own preferences: shortly after the election, he said to CNN there were no plans for a “deportation force.” Ryan supports legalization for unauthorized immigrants living and working in the U.S. He is also aware that now that Trump is in office, the Republican Party has sole ownership of one of the nation’s most vexing problems, and he and his Republican colleagues must stand for re-election in 2018.
Trump is also stepping onto issue terrain where state and local leaders demand their say. It remains to be seen if state and local officials can block the efforts of a Trump administration hoping to consolidate control over national borders. However, cities and states across America have been taking sides over the last decade; the fault-lines are visible, and mayors and governors are preparing to stand their ground.
[1] As of August 2016, USCIS has approved close to 850,000 DACA applicants, but in June 2016 the Supreme Court upheld a lower court’s decision to block DAPA’s implementation.
[2] Although it is beyond the scope of this discussion, one result of a decade plus of enforcement-heavy priorities is the backlog currently burdening immigration courts.
[3] Lina Newton, 2012. “Policy Innovation or Vertical Integration? A View of Immigration Federalism from the States.” Law & Policy 34 (2):113-37.
[4] Lina Newton. 2015. “Immigration Federalism as Ideology: Lessons from the States” Laws. 4(4): 729-754.
This post appeared as part of a Roosevelt House series on the first 100 days of Donald J. Trump’s presidency. To read the rest of the series, click here.
Lina Newton is associate professor of Political Science at Hunter College. She is the author of Illegal, Alien, or Immigrant: The Politics of Immigration Reform (New York University Press, 2008), and her latest work on the rise of immigration policy making across the American states has appeared in Publius, Law & Society, and Laws.
