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Congress’s deal on immigration detention, explained

The funding deal encourages ICE to detain fewer immigrants. Will it work?

Since this photo of detained immigrant women was taken in 2006, the number of immigrants in detention has exploded — far beyond what Congress has authorized Immigration and Customs Enforcement (ICE) to spend. A new congressional deal sets a record for detention funding, but it’s supposed to encourage ICE to get back on budget.
Robert Nickelsburg/Getty Images

The heart of the tentative deal reached Monday night to fund the Department of Homeland Security and avert another government shutdown before Friday’s deadline isn’t actually the $1.375 billion in funds for a physical barrier (President Trump’s “wall”) along 55 miles of the US-Mexico border.

It’s funding for the detention of immigrants — both those apprehended at the border and those arrested within the United States — by Immigration and Customs Enforcement (ICE).

Under Trump, ICE has been vastly expanding immigrant detention, both choosing to detain more people who are arrested by ICE while living in the United States and, more recently, detaining large numbers of families and asylum seekers crossing into the US. It’s been overspending its budget to do it.

The new deal is an attempt to get ICE to reverse that trend and detain fewer people, without setting a firm cap on the number of people ICE can detain at any given time after arresting them in the US (a demand Democrats had previously made but dropped Monday night).

According to congressional aides, it’s designed to get ICE to reduce the number of immigrants in detention to 40,520 — the level authorized by Congress last year — by September 30. To give ICE time to meet that goal, though, a congressional aide told Vox that Congress is funding ICE to detain an average of 45,274 immigrants between now and the end of September.

That average is much higher than Congress has authorized in the past. It’s still lower than the Trump administration’s asked-for level of 52,000 beds. But Republicans are saying that the bill will still give ICE enough flexibility to detain that many people if it needs to.

It’s not just a partisan fight. It’s an inter-branch fight over whether the deference that the executive branch generally gets on immigration extends to budgeting, or whether Congress’ “power of the purse” can force the administration to make decisions about who it really needs to detain. And while the detention deal is a new effort by Congress to rein in the executive branch, we won’t know for several months whether it’s worked.

Trump has pushed immigration detention to record highs

Giving ICE the money to detain an average of 45,000-plus immigrants a day would have seemed unthinkable a generation ago — or even a year ago.

The government has a lot of power to keep immigrants in civil detention while their deportation cases are pending, or once they’ve been ordered removed but haven’t been deported. Federal law also requires the government to detain certain immigrants who are apprehended entering the US without papers, as well as immigrants who have been convicted of certain types of crimes. Immigrants can also be detained if the government worries they’re a risk to public safety or might skip out on their court dates, though they’re generally eligible to request a bond hearing.

Historically, it wasn’t normal for the government to detain large numbers of immigrants. That’s because historically, the government didn’t really have anyone who needed to wait that long.

People caught trying to cross the border were simply returned rather than being formally deported, and not many unauthorized immigrants were arrested while living in the US (which generally entitles an immigrant to a hearing in front of an immigration judge before she’s deported).

When both of those policies changed, in the second term of George W. Bush through the first term of Barack Obama, immigration detention expanded rapidly.

Toward the end of his presidency, Obama restricted ICE’s authority to arrest and detain unauthorized immigrants simply for being unauthorized, and immigration detention dipped accordingly.

Then Trump took the presidency. During his first week in office, he signed an executive order that declared nearly every unauthorized immigrant in the US a “priority” for deportation. (In practice, most of the people the Trump administration has chosen to detain have been immigrants with past criminal convictions or charges — though plenty of those charges aren’t serious enough to require mandatory detention under the law.) The executive order also removed some of ICE’s flexibility to decide which immigrants it was most important to keep in detention.

This, plus the rise in people coming into the US who can’t immediately be deported because they’re children or families, seeking asylum, or both, means Trump has pushed the detainee population to record highs.

Congress used to require DHS to keep at least 34,000 detention beds for immigrant detainees. (It wasn’t obligated to fill those beds, but since it was spending money on them anyway, the incentive was there.) The purpose, according to congressional Republicans, was to encourage the Obama administration to enforce existing immigration law — something that Republicans did not trust Obama to do on his own, despite the record enforcement of his first term.

But as Democrats started to move left on immigration, congressional Democrats became increasingly vocal about the need to end the “bed mandate.” By May 2017, they succeeded — Congress gave ICE money to detain an average of 39,000 immigrants a day but didn’t set a minimum requirement for beds.

Meanwhile, the Trump administration kept detaining more immigrants than it had the budget for, using a provision in federal law that allows ICE to exceed its budget as a matter of “life and safety” and the administration’s argument that releasing any immigrant with a past criminal conviction or charge would pose a danger to the American public.

When it ran out of money, ICE either came back to Congress to either ask for more “supplemental” funding to make it through the rest of the year or ask for Congress to sign off on transferring money from other areas at DHS.

By March 2018, congressional Republicans gave ICE the money to detain an average of 40,520 people a day — far fewer than it was detaining at the time — and instructed ICE to keep Congress informed about how it was “living within its means.”

ICE was undeterred, and detention kept rising. Congressional Republicans blinked — signing off (over Democratic objections) on a transfer of $200 million to get it through 2018.

But now Democrats control the House, and the purse strings. In theory, that means that if ICE doesn’t work to bring detention levels down to 40,520 by the end of the year, it can no longer expect to get bailed out.

The deal funds an average of 45,000-plus beds, putting ICE on a “glide path” to last year’s levels

In the new bill, Congress isn’t actually setting limits on how many people are in immigration detention on any given day. (Democrats pushed to put a cap on how many immigrants who’d been arrested within the US could be detained, but they dropped that demand Monday.) Instead, it funds an “average daily population” and leaves it up to ICE to determine when it needs to spend more money to detain more people and when it can spend less to detain fewer.

Since March 2018, ICE has been instructed to keep an “average daily population” of 40,520 beds. It’s wildly overshot that target. Furthermore, over the past several months, it’s started to detain thousands more people.

As of September 15, 42,105 people were in detention. As of October 20, 44,631 people were. By January 6, that number had jumped to 46,492 — and by February 6, it was 49,057. (The most recent number, provided to the Washington Post as of February 10, was 48,747.)

The new funding deal is designed to get ICE to gradually reduce detention from 49,000 detainees to 40,520 — the previously authorized level — by the end of the fiscal year.

Officially, though, the funding level is measured by the average daily population. And according to a congressional aide, to get ICE to a level of 40,520 by September 30, the bill funds an average daily population of 45,274 detainees.

The logic is that ICE can gradually reduce its detention population over those several months, detaining more people now and fewer people in September. But officially, it means the detention level Congress is authorizing is higher than it ever has been.

The fight over immigration detention isn’t over

According to Republicans, the bill doesn’t actually constrain Trump or ICE all that much. They’ve told reporters that there’s still “flexibility” in the bill for ICE to put more money toward detention — that if the administration feels it’s needed, it can find the money to detain 52,000 people (Trump’s requested target) or even more.

The congressional aide who spoke to Vox confirmed that was true — but only to a point. The bill doesn’t limit ICE’s existing powers to transfer some money between certain funds, so it has some wiggle room. (According to Bloomberg, that wiggle room comes out to $750 million.) But there are other things the government needs that money for. If DHS decided to put literally every penny it legally could toward ICE detention, the aide estimated, they could detain as many as 58,000 people, but they’d have to cut “core functions” of other DHS agencies like the Coast Guard.

That doesn’t mean the administration will be deterred. It may well keep detaining people at existing levels and try to force Congress to fill the resulting budget gap, through a supplemental or by approving the transfer of more money through reprogramming.

This isn’t just a fight over fiscal responsibility. It’s about whether federal law enforcement should be constrained in deciding who poses a threat to public safety — or whether the Trump administration has forfeited the right to make those assertions without question.

To the administration, unauthorized immigration itself is inherently a threat to public safety — and it doesn’t want to wait for immigrants to commit a “subsequent” crime before being able to lock them up and send them back. “There really shouldn’t be a debate about taking violent criminals and immigration violators off the streets,” ICE Deputy Director Matthew Albence told reporters Monday.

At this point, though, Democrats are skeptical of any Trump administration assertion about immigrants being threats. They suspect the administration is pushing to expand detention so that it can deport immigrants more quickly — there’s a separate immigration court docket for detainees, and it’s much less backlogged than the main docket — or to encourage immigrants to give up on fighting their case and accept deportation. Or they see it as simply a way to line the pockets of private prisons, or to send a message that immigrants are criminals by treating detention as if it’s jail.

The new deal is an attempt to compromise: to have Congress set goals and the administration figure out how best to meet them. But the administration may not bend to Congress’s effort to exercise any control at all. And Congress, under Democratic House leadership, may not be as willing to buckle.

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