By Danny Vinik
November 9, 2016
From the start of his campaign, no issue was more central to Donald Trump’s appeal than immigration: He launched his run last year with the promise to build a wall on the U.S.-Mexico border, and expanded his pitch to triple the number of ICE agents, end sanctuary cities and suspend the issuance of visas to certain countries, including several claims he’d make Mexico itself pay for the wall.
So how much can a President Trump transform American immigration, really? The symbolic victory of the wall would be tough to pull off—especially the Mexico-financed part—but he could make dramatic changes to the immigration system if he truly focuses his efforts.
While presidents have wide range to conduct foreign policy, they are far more constrained on most domestic issues. Trump can’t repeal Obamacare or cut taxes unilaterally, and has to find ways to work with Congress to meet any of those promises. But immigration is one area where presidents have wide authority to implement the law, though their resources are not endless. President Barack Obama pushed his authority to the limit, and his example offers Trump a roadmap for implementing his own policies.
Experts agree that Trump could wipe away much of Obama’s legacy on immigration, most notably his deferred action program that protected young undocumented immigrants brought to this country as kids—known as the DREAMers—from deportation. He could also ramp up the Department of Homeland Security’s enforcement machinery, potentially conducing workplace raids and undoing Obama-era enforcement priorities that have targeted DHS resources on specific groups of undocumented immigrants rather than the population as a whole.
“You can expect a sea change in the enforcement system,” said John Sandweg, the former acting head of the U.S. Immigration and Customs Enforcement agency under Obama. “You’ll see a dramatic reversal back to the roundups and policies that existed prior to the Obama administration.”
Like most of the country, immigration activists were shocked by last night’s results and are still wrapping their minds around what Trump’s immigration policy might look like. “I don’t even know how to begin to answer that one,” said David Leopold, an immigration lawyer based in Cleveland, when asked what Trump’s immigration policies might look like. “The biggest concern at the moment is about the families who are out there, the 11 million [undocumented immigrants].” They are holding out hope that Trump will pivot to the center on the issue once in office.
But unlike on many policy issues, Trump has stayed fairly consistent in his proposal to force Mexico to pay for a wall on the U.S.-Mexico border and deport the 11 million undocumented immigrants in the country.
Throughout the campaign, experts have said that those two promises were wildly unrealistic—and based on the details, many continue to believe that. He proposed using an obscure section of the Patriot Act to impound the remittances of undocumented immigrants as a way to pressure Mexico to fund the wall. Experts familiar with the remittance economy said the plan is legally dubious and that banks may immediately exit the industry, preventing Trump from collecting any money. And if Trump did find a way to capture the remittances, it would be up to Congress to spend that money; he couldn’t just use it as a construction piggybank at the border.
As for deporting the 11 million undocumented immigrants? Trump has proposed a mandatory e-verify system to make it harder for undocumented immigrants to find work and a tripling of the number of ICE officers who enforce immigration laws. Again, this has to go through Congress, where a lot of members are wary of implementing harsh immigration policies for reasons ranging from human rights to business needs. Even if Congress passes those policies, they wouldn’t suddenly eliminate the undocumented population. As of now, ICE only has the resources to deport a few hundred thousand people a year. Deporting all 11 million would cost an estimated half a trillion dollars, according to a report last year from the right-leaning American Action Forum.
“The tripling of ICE agents, the building of wall, detaining every person apprehended at the border— those things are outrageously expensive,” said Sandweg.
While Trump may be unable to completely fulfill either of those promises, he will still have significant flexibility to impose his own vision of immigration policy. Because resources are so limited relative to the total undocumented population, presidents have significant legal authority in how they use those resources. Obama attempted to focus resources on specific groups of undocumented immigrants. The Department of Homeland Security implemented new enforcement priorities, first in 2010 and revised in 2014, that told officers to target people who were a threat to national security, those with criminal records and recent arrivals. For millions of undocumented immigrants, that has effectively protected them from deportation: If you were in the country before 2014 and have no criminal record, ICE largely won’t bother you. Obama also unilaterally protected the DREAMers from deportation and granted them work permits through an executive action in 2012—a policy known as deferred action for childhood arrivals (DACA). A later executive action, intended to grant deferred action to four million more undocumented immigrants, was blocked in the courts.
Pro-immigration activists still are angry at the president for what they saw as a too-slow pace implementing these policies, but now that they’re in place, deportations have dramatically declined over the last few years, from more than 400,000 in 2012 to 235,000 in 2015. The numbers are expected to be even lower in 2016.
Taken together, these efforts have represented a dramatic change in the immigration policy landscape. But they also have one major weakness: A new president could undo them with a stroke of a pen. Trump will now have the ability to do just that.
“The gains and the refinements and the reforms of the immigration enforcement system over the last eight years were almost all administrative,” said Sandweg. “Almost none of them were statutory. As such, I think you’re going to see a reversal of almost all of those gains, in a way that jeopardizes public safety, that reduces the ability of the agency to focus on criminals in an effort to drive up numbers.”
Beyond undoing Obama’s unilateral actions, Trump could implement new policies to actively find and deport undocumented immigrants. He could focus resources on families and people with deep ties to their community—an easy way to drive up deportation numbers, since those people live openly. He could restart workplace raids, which largely ended at the beginning of the Obama administration, and the Secure Communities program, or something similar, which enables state and local law enforcement to effectively act as immigration agents. After much pressure from immigration activists, Obama ended Secure Communities in 2014.
Whether Trump will actually follow through on these policies once in office is unclear. At one point during the campaign, he said he didn’t want to rip families apart—a comment that appeared to contradict his stated policy priorities. The exit polls could also temper Trump’s enthusiasm for a major deportation effort. The polls found strong support among all Americans for a pathway to citizenship as a part of comprehensive immigration reform, even among the white working class—Trump’s base. It could also cause major frictions in the corporate world, as many industries, such as agriculture, rely on immigrant labor.
“He’s going to have to see the reality of what cancelling of something like DACA would mean to a million people who have come out of the shadows and are now in the workplace,” said Leopold. “It’s not going to be quite as simple as he’s made it out to be.”
Still, Trump has largely held true to his immigration positions, and he has surrounded himself with immigration hardliners, including Sen. Jeff Session and aide Stephen Miller, an anti-immigration policy maven who has become a close Trump advisor and introduces him at rallies. If they receive high-level positions in a Trump administration, as appears likely, they would have significant power to implement hardline immigration policies.
“The people who run DOJ [and] DHS are to a large degree impervious to public opinion,” said Ali Noorani, the executive director of the National Immigration Forum. “They are going to be in pure implementation mode.”
The lone bright spot Tuesday night for activists was the defeat of Sheriff Joe Arpaio, who became beloved among conservatives for his strict enforcement of immigration laws as sheriff of Maricopa County, Arizona. Earlier this year, a judge found Arpaio in contempt of court for violating an order intended to reduce racial profiling. He was had been a top target for many on the left.
Even there, though, Trump’s election could temper the enthusiasm: Arpaio’s loss frees him up for a spot in a Trump administration.
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