A union contract signed by the Trump administration on its last full day in office could enable Immigration and Customs Enforcement (ICE) officers to stall President Biden’s vision for a reimagined immigration system.
The agreement, signed by acting Department of Homeland Security (DHS) Deputy Secretary Ken Cuccinelli, forces the administration to get the blessing of the union before enacting any policy changes.
Despite all of former President Trump’s complaints of an active resistance within the federal government, the ICE agreement gives an unusual level of power to a union that twice endorsed him to resist the next administration.
“What these agreements do is give the union veto power,” said attorney David Seide, who is representing a whistleblower who flagged the agreement.
“The Trump administration playbook has been to make life as difficult as possible for the incoming Biden administration,” he said. “They want to slow down or inhibit the incoming Biden DHS folks and specifically, vis a vis immigration enforcement priorities, it's fair to say they have a different view of them than the Biden people.”
The agreement with the more than 7,000-member National ICE Council requires “prior affirmative consent” from the union before changing working conditions, something that includes hours and compensation as well as policy decisions.
Seide fears that provision would allow the union to stall changes indefinitely.
The agreement surprised even former Trump administration officials, who described it as a bad deal for management.
“It was not good for the agency because management lost a lot of rights on how they run the agency,” said Tom Homan, who led ICE in the early days of the Trump administration.
“To run an agency this big efficiently and effectively, management needs to make decisions and can’t be hamstrung by a union that’s going to slow down or impede quick action by the agency.”
The agreement contains other unusual aspects, including a provision that bars any legal challenges to the contract for another eight years — a move that would kick any negotiations beyond the reach of the Biden administration.
It also gives the ICE union far more official time — the number of hours employees are allowed to work on union activity — than any other DHS agency union.
It’s also not clear that Cuccinelli even had the authority to sign the agreement. A federal court in March found his lengthy status as an acting official violated federal vacancy laws and invalidated some of his other official decisions.
The agreement gives DHS leaders 30 days to disapprove the agreement, giving the Biden administration until Feb. 17 to do so. Without action, however, the agreement takes effect.
“We believe time is of the essence,” Seide said. “There’s two weeks left on this, and that should give the agency time to think about it, have their meetings, and figure out what if anything they want to do.”
The White House, DHS and the ICE union did not respond to requests for comment.
But even if the Biden administration pushes back on the contract, it signals the resistance the young administration may face from ICE’s rank and file.
Jorge Loweree, policy director with the American Immigration Council, said ICE agents faced very little accountability under the Trump administration.
“They were essentially given a blank check from the administration, saying, ‘Go forth as you see fit,’ ” he said. “We’re seeing an agency that already indicated resistance to being thoughtful in their approach to immigration enforcement and the inequities and harms perpetrated on families and communities in this process.”
“The Biden administration is going to have a serious challenge of culture and direction within the agency to make sure what they're saying are going to be priorities are the priorities the agency acts upon on the ground.”
Biden has already signed a number of orders signaling a 180 from the Trump administration when it comes to immigration. .
He ordered a sweeping review of America’s asylum policies, including Trump’s policy requiring migrants — even those not from Mexico — to remain in that country while applying for asylum.
And DHS on Inauguration Day halted deportations for 100 days, something already suspended by courts but that Homan said sparked concern among ICE employees.
“The men and women of ICE will do the job that’s passed down from the administration, but what’s disheartening is when the framework given is in direct violation of existing law. That’s what makes it difficult,” Homan said, noting that agents take an oath to uphold the nation’s immigration laws.
Carrie Cordero with the Center for a New American Security said it’s too soon to argue there’s any sort of resistance within ICE given that the new administration has barely been in office for two weeks.
But she said each agency within DHS has a “strong individual component identity” and that each prior administration has struggled to unify the department’s various agencies.
“They might be resistant to more direction and control they perceive as coming from DHS headquarters,” she said, part of the reason she’s advocated for broader congressional oversight of DHS.
Immigration and Latino groups say the contract shows the need to cement programs like the Deferred Action for Childhood Arrivals program as well as pass a broad immigration bill through Congress.
“If they don't do it in the first 100 or so days we’re going to see deadlock on this issue and humans used as pawns and political piñatas,” Domingo Garcia, president of the League of United Latin American Citizens (LULAC), told The Hill.
But they’ve also threatened to sue over the union contract.
“LULAC believes that the deal that the ICE union did with the acting secretary on that last day of Trump’s administration is illegal and unconstitutional and should be voided by the attorney general immediately,” he said, calling it one of many “land mines” left by the prior administration.
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