The Trump administration is almost certainly going to be more aggressive in arresting and deporting unauthorized immigrants than any presidency has ever been.
It’s something Trump’s people want to spend political capital doing. Immigration enforcement makes up a big component of the administration’s plan for its first 100 days. It’s hired Kris Kobach — who’s come up with proposals including the “show me your papers” state laws Arizona and other states have tried to pass and an interstate compact to give special birth certificates to US-born children of unauthorized immigrants so a future federal government could strip them of citizenship — to its transition team.
But it doesn’t even need to do anything that creative or unprecedented.
Even if every single Trump administration proposal to change immigration law or policy somehow gets blocked (which, given the amount of authority the executive branch has over immigration, is unlikely), it could still do more to go after unauthorized immigrants than anyone’s ever done before.
Donald Trump doesn’t have to implement any unprecedented immigration policy to create an unprecedented immigration regime. He could just use the precedents the last two presidents created for him.
Both the George W. Bush and Barack Obama administrations created powerful tools for apprehending and deporting immigrants. It’s just that no one’s ever used them together.
The Obama administration was already more aggressive about immigration enforcement than many people realize. Obama set deportation records during his first term, deporting 400,000 people a year. Border Patrol and Immigration and Customs Enforcement agents had relatively free rein to catch and deport immigrants — and easy access to local jails to pick up immigrants who’d come in contact with local police. Many of those deported were labeled “criminals” because they’d been pulled over for broken taillights or arrested for minor offenses like selling illegal phone cards.
Trump could bolster the impact of Obama’s efficient deportation machine by bringing back tactics from the Bush era — workplace and neighborhood raids and roving “task forces” of local police officers. And by rejecting Obama’s policy of setting “priorities” for which immigrants to deport, he could restore the Bush administration’s ability to make every unauthorized immigrant in the US feel equally targeted — and equally at risk of deportation at any time.
A Trump administration could turn every interaction with the police, every day at the workplace, and every knock on the door into a potential deportation nightmare for all 11 million unauthorized immigrants in the US — and everyone around them. And he could do it without doing anything that Presidents Bush or Obama — both of them, theoretically, supporters of comprehensive immigration reform — hadn’t done before.
President Obama set the standard for how many immigrants a president can deport
Barack Obama is generally seen as friendly to unauthorized immigrants, but he actually pursued a surprisingly harsh policy during his first term in office, deporting 400,000 people a year during his first four years.
The administration routinely went before Congress and said that was as many people as it could deport given the budget Immigration and Customs Enforcement was being given at the time.
In the later years of Obama’s presidency, the administration has eased up on deportations — it now deports comparatively few people who are living in the United States. But it’s pretty clear that’s a matter of choice, not necessity. And the administration has essentially set a benchmark for how many immigrants can be deported under current budget levels — or how many, hypothetically, could be deported if the budget were expanded accordingly.
Every jail in the US can become a feeder to federal immigration agents
By the time Obama ran for reelection, nearly every prison and jail in the US was connected to federal immigration enforcement through the “Secure Communities” program. When someone was booked into jail who might be an unauthorized immigrant, his name was run through a federal immigration database to check; if there was a hit, the immigrant got held until ICE agents could pick him up.
The same incentives that made it easy to use the “task forces” for racial profiling applied to Secure Communities. Meanwhile, some pro-immigrant local governments started pushing back on the idea that they had to turn everyone booked into jail — even if it was for a minor violation, or even a mistake — over to ICE.
The Obama administration ended up replacing Secure Communities with something that (theoretically) sets much clearer and more limited rules for when someone gets turned over to ICE. To critics, the administration was capitulating to sanctuary cities.
The Bush administration empowered local police who wanted to help with immigration enforcement. The Obama administration pioneered a way to get cooperation from local police and politicians who didn’t want to help turn in immigrants. The Trump administration could easily do both.
Under Bush, no unauthorized immigrant was “off limits” for deportation
Even more important than how many people get deported, though, is who ought to be deported.
President Obama used a strategy called “prosecutorial discretion” to prioritize the deportation of certain types of immigrants (especially those convicted of crimes) and discourage deporting others (like parents of US citizen children).
It took most of his presidency to figure out a way to turn this into a consistent policy across the vast immigration enforcement bureaucracy, and he never got all the way there. But the practical result was that many otherwise law-abiding unauthorized immigrants didn’t have to worry nearly as much about being deported in 2016 than they had in 2008.
In contrast, George W. Bush’s immigration policy tended to reflect the philosophy that all unauthorized immigrants in America ought to feel that deportation was a possibility at any given time — because if they felt the pressure, they might be inspired to leave on their own before ICE got to them. (You might recognize this as the theory of self-deportation.)
Supporters of this strategy see it as a really important part of maintaining the rule of law against unauthorized immigration. They believe that if you have broken a law, and you don’t feel afraid you might be punished for it, the law might as well not exist.
This is the philosophy that Trump’s key immigration advisers — from longtime ally Sen. Jeff Sessions to transition staffer Kris Kobach — subscribe to. It’s extremely unlikely that it won’t become the policy of his administration.
The most obvious consequence of this is that the Trump administration almost certainly will, as candidate Trump has promised, end the Deferred Action for Childhood Arrivals program, which grants protection from deportation (and work permits) to unauthorized immigrants who entered the US as children or young teens.
The 700,000 or so people who currently have protections under DACA could lose them as soon as the first day of the Trump administration. Trump’s DHS would have their names, addresses, and biometric information. It might choose not to use that information to track people down — but nothing in its philosophy would stop it.
The Bush administration staged big, headline-grabbing workplace raids
There’s more to immigration enforcement than deporting people. The federal government also puts a lot of energy into ensuring that people working at US businesses have legal authorization to do so.
The Obama administration has used what it calls “paper raids” — it asks businesses to provide proof that all of their employees are working in the US legally, and if the business can’t prove that within a certain amount of time, it faces penalties. This is an efficient way to do things, and it focuses on penalizing the employers rather than the employees (an unauthorized worker might lose her job because her employer is facing a “paper raid,” but she isn’t as likely to get deported).
But critics, including Republicans who are now Trump advisers, think this strategy lets unauthorized immigrants working illegally and lets those who hire them off too easily.
The Trump administration, therefore, is likely to go back to the physical raids favored by George W. Bush’s administration — which were often huge, high-profile operations including coordination among multiple police departments and SWAT team–level technology (like police helicopters).
The Bush strategy was much more likely to lead to criminal charges and deportations for the unauthorized workers who got arrested by ICE agents during the raid (though, under Bush, employers often escaped serious punishment).
In some cases, like the raid of a meat processing plant in Postville, Iowa, in 2008, a workplace raid traumatized and destroyed an entire community. Postville lost half its residents, and, the LA Times wrote a year later, “the family-like community of high school football game gatherings and homey weekend meals inside cafes began to unravel.”
To people who think the federal government needs to crack down on unauthorized immigrant labor, constant awareness of the threat of deportation is a feature, not a bug. Workplace raids are almost certain to come back.
Bush deputized local police to act as immigration enforcement squads
Immigration law is federal law, and local police usually aren’t in a position to enforce federal laws. But under a provision of federal immigration law, local police forces can get deputized for immigration enforcement — allowing them to arrest suspected unauthorized immigrants, giving them access to federal immigration databases, etc.
The Bush administration leaned heavily on these partnerships — called “287(g) agreements” after the provision authorizing them — as a force multiplier: a way to find a lot more unauthorized immigrants than the federal agents could on their own.
Of course, when you encourage local police officers to find unauthorized immigrants and turn them over, the risk of racial profiling is huge — it’s very easy to target people who “look illegal.” For that reason, the Obama administration basically phased out the use of 287(g) agreements to let local police do street-level immigration enforcement.
But not everyone thinks the risk of racial profiling outweighs the benefit of the force multiplier. To immigration hawks, if the federal government has the opportunity to get local help in catching unauthorized immigrants, and doesn’t take that opportunity, it’s tantamount to keeping police officers from enforcing the law.
Kris Kobach, now on President-elect Trump’s transition team, has long championed the use of 287(g) agreements. There are plenty of law enforcement officers around the country interested in helping Trump make America great again, and the Trump administration has an easy legal tool available to use local cops accordingly.
Very small policy changes can create very big ripples of fear
Immigrant communities (including unauthorized immigrants and those who live among them) have been living under the constant threat of arrest, detention, and deportation for most of the past decade. It’s an intermittent trauma.
Even though the threat of deportation has receded somewhat in the past two years, it takes a while for the fear to go away. And it takes very little to stir it back up again.
The Obama administration set off a panic in immigrant communities at the beginning of 2016 when it announced a wave of immigration raids to round up families who’d recently come to the US from Central America. The raids were supposed to be highly targeted (and relatively few people actually ended up arrested or deported). But the very idea of a raid set off ripples of fear — and because any unauthorized immigrant could be deported, the idea that they weren’t the ones this raid was supposed to catch was cold comfort.
Even if the Trump administration only used half of the tools that Bush and Obama developed — even if it, in practice, wasn’t any more aggressive in immigration enforcement than either of its predecessors — it would put immigrants under a constant cloud of fear.
In theory, that fear would be the point — it would be a reminder that violating immigration law has consequences.
This isn’t the ceiling for what a Trump administration can do on immigration enforcement. It’s the floor. The deportation machine is there — it’s been built by two past presidencies. President-elect Trump and his team could do unprecedented damage just by turning on all the switches at the same time.