By Darren Samuelsohn
October 20, 2015
On Capitol Hill today, Senate Republicans are pushing for a bill to crack down on "sanctuary cities." Donald Trump keeps talking about building a wall between the U.S. and Mexico. President Barack Obama is bracing for a Supreme Court battle over one of his last remaining domestic priorities, an executive order protecting more than 4 million illegal immigrants from being deported.
Immigration remains one of the country’s thorniest policy issues, one unexpectedly thrust to the fore by the presidential campaign. To size up how the latest Senate clash over immigration fits into the broader national debate—and how the heated rhetoric matches the reality on the ground—POLITICO senior reporter Darren Samuelsohn interviewed John Sandweg, Obama’s former top attorney at the Department of Homeland Security and the ex-chief of U.S. Immigration and Customs Enforcement.
Sandweg suggested that Trump’s wall “would probably compromise border security more than it would help it,” and explained that birthright citizenship is a red herring. And while he's supportive of Obama's recent executive actions on immigration, Sandweg conceded the president faces a “limited window” to get his efforts through the Supreme Court. And even if Obama wins, his legacy could well be erased by next year's election.
Darren Samuelsohn: The Senate is about to debate a bill to crack down on sanctuary cities, which have loosened up on enforcing federal immigration rules. Are these cities really a threat to public safety?
John Sandweg: It depends on the nature of the sanctuary city. If you look at Chicago, what they’ve been doing is saying nobody goes to [U.S. Immigration and Customs Enforcement]. That, when you have a convicted felon or somebody of that nature, is crazy. It does definitely lead to a public safety concern in a situation like that.
DS: The Senate Republicans want to stop federal funding to those cities, and also impose tougher mandatory sentences on undocumented immigrants who've been caught or convicted before. What's wrong with that?
JS: There needs to be a more reasonable approach here, and I don't know necessarily that the Senate imposing its will upon the states is necessarily the answer.
An interesting thing on the mandatory minimum, though, that no one is paying attention to is how many people apprehended at the border actually have a prior immigration history, have been previously apprehended by the Border Patrol—and to the extent you impose a mandatory minimum on those individuals, you're going to fill up the federal prisons pretty quick with huge numbers of individuals.
DS: Why have sanctuary cities emerged as such a focal point of the immigration debate?
JS: It's a reaction to a perceived increase in enhancement in enforcement activity in immigration. Certainly, during the times I was at DHS, obviously the numbers of people removed from the United States increased. At the same time, we shifted the focus to the jails.
It's not what I think the advocacy groups felt it was, that the shift of the jails triggered the increase in removals, but there was a perception that was created that that was the cause and effect. And so…because the agency starts shifting to focus on the jails, the advocacy community starts shifting to what could they do to slow down ICE in their efforts to remove people from the jails. And so I think what you saw…was the kind of creation of the sanctuary city policies that basically said you cannot cooperate with ICE.
DS: The Senate bill has already sparked a debate among some Republicans on the need for comprehensive immigration reform. But that isn’t going anywhere this year. Do you think Congress can ever get back to this issue?
JS: They have to at some point. I think there's widespread support on both parties, with Republicans and Democrats supported. I think that there is definitely a chance.
DS: What do you think that approach ultimately could look like?
JS: That's a funny thing, is everybody agrees. You need to address shortages of legal workers in the United States, especially high skilled and low skilled. You need to address enforcement of people who cheat, employers who cheat, who hire people in the country unlawfully. You need to address 11.5 million [undocumented people in the U.S.]. You need to address the border.
I think the pillars of a bill, everybody agrees on, and the fundamentals, everybody agrees on. I think even if you look at the polling, the Republican party generally supports some sort of earned path to legalization. The question is just the politics of it.
DS: For now, the Obama immigration executive orders are on hold by a federal district court ruling. Where do we go if, as expected, the 5th Circuit Court of Appeals lets that opinion stand?
JS: This has to go to the Supreme Court and, say the Supreme Court upholds the president's actions but doesn't do so till the summer, you have a presidential election right around the corner, and you have a very short window for DHS to put in place all the necessary parts, hire the staff to process the applications, get all of the infrastructure together so they can accept millions of applications....I think there would also be a real fear in the community because there's a presidential election, and if it's a Republican president, based on the rhetoric thus far, it's almost certain to rescind the executive actions, which is purely within their discretion. So I think that if it comes down to the Supreme Court, there is a high likelihood that the program doesn't really get off the ground this term.
If the Fifth Circuit, however, comes out…and approves the administration, I think then there's sufficient time to actually register and grant for action to a large number of individuals, and I think that would be a very significant development.
DS: What's your take overall on what the GOP presidential candidates have been saying this year on immigration?
JS: If you look at Mr. Trump's plan and you look at the things that Trump has said, frankly, the Trump plan would probably compromise border security more than it would help it. ... The ones who are…the most moderate are throwing out the border-first kind of rhetoric [which] really is just…a code for 'we're not interested in passing any sort of immigration reform.'
To be fair, though, I do think that [Jeb] Bush and to a certain extent [Marco] Rubio certainly voted [in 2013] for the Senate [immigration] bill. I think that they'd be interested in trying to find a compromise should they be elected president, but certainly, the rhetoric right now…they're catering to their base a little bit, not to the extent that Ted Cruz or Trump are, but certainly, they're catering to their base.
DS: Do you think Trump can realistically follow through with his proposal to deport all 11.5 million illegal immigrants in the U.S.?
JS: It's not possible. If you look at the largest year in the history of the U.S. for how many people were deported, really the number is like 400,000. So, if you have 11.5 million, I mean, do the math.
What people forget about the immigration system, it's not just a function of finding people or arresting people, but rather it's also processing them through the immigration courts…making sure that they're not going to be persecuted in their home country, making sure that…they have their day in court. And the amount of money it would cost, I know there's been people who have studied this, to actually try to enforce the law against all 11.5 million would be…probably close to $10 billion annually.
DS: Trump is also seeking to amend the 14th Amendment to the Constitution to end birthright citizenship. What do you make of this proposal?
JS: From a personal level…I don't think it's necessary in the slightest. I don't think any migration or any sort of significant amount of migration in the United States is based on the desire to have your child be a United States citizen. Certainly, there is going to be a handful of cases where that's the case, but the overall majority of people are coming here for one reason, and that's to work or to reunite with their family members.
DS: How about Trump's call to build a wall on U.S.-Mexico border?
JS: We don't need it. First of all, if you look at the border, people who know the border, and you talk to Border Patrol agents, and you can see that it’s long border with wildly different terrain in different spots. There's certain spots, huge swaths of the border, 85 to 90 percent of the border that have never, never had any number of individuals cross that border in any sort of numbers.
If you look at chunks of New Mexico where they apprehend a handful of people annually, you know, there's no need to build a wall in those isolated areas. There are certain areas, though, where there's high flows of traffic, and the infrastructure on the Mexican side and the U.S. side makes it a very attractive place for smugglers to bring people across. Well, in those areas, you have walls already currently today.
The problem, though, is the border is a dynamic threat. People move. If you build a wall, they're going to move into a better area to cross, and so what the Border Patrol is focused on, rightfully so now, is mobile technology that allows them to detect those people, but when they shift, when you flood resources into an area and they shift, you can shift with them.
And if you look, though, at the history of the U.S. border, you will see that there have been hotspots where the Border Patrol has flooded in fixed resources that are expensive — San Diego in the '90s; El Paso, Texas, in the 2000s; Tucson, Nogales, or Douglas, Arizona, until the last couple of years. We flood in the resources, and the traffic just moves.
That is why I think the transition to a more mobile Border Patrol that's risk based, where you detect where the people are coming and you flood resources into that area, but when they move, you can move with them, that is the proper approach, not a giant wall that people tunnel under, fly over, go around in the ocean.
DS: Can you imagine the Mexican government agreeing to Trump's demand to foot the bill for the wall?
JS: No. That seems to be a stretch.
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