Democracy & Elections

Annals of the Trump Administration #9 -- Immigration and Border Security Policy

Paul Rosenzweig
Tuesday, November 29, 2016, 10:23 AM

As a national security blog, Lawfare, has more or less ignored issues relating to immigration. To be sure, the issue of immigration intersects with the question of border control (that, after all, is why the immigration function now resides in DHS) and thus has impacts on national security but, by and large, most observers would agree with the premise that immigration is more about economics and humanitarian considerations than it is about national security. That's all about to change.

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As a national security blog, Lawfare, has more or less ignored issues relating to immigration. To be sure, the issue of immigration intersects with the question of border control (that, after all, is why the immigration function now resides in DHS) and thus has impacts on national security but, by and large, most observers would agree with the premise that immigration is more about economics and humanitarian considerations than it is about national security. That's all about to change. If one thing is already clear from President-Elect Trump's appointments it is that they see immigration and border security as far more tightly intertwined and far more salient as a national security issue than have their predecessors. National Security Advisor Flynn and Attorney General Sessions (along with a yet-to-be-named Secretary of DHS) will be tasked with a series of immigration/border security-tightening initiatives that reflect a heightened sensitivity to immigration from Islamic nations and a greater concern with flows of migrants generally.

How much of President Trump's immigration agenda can they achieve? How likely is it that the efforts will be successful? It seems probable that President Trump can achieve most, though not quite all, of his objectives. Let's review a few of the most prominent promises (taking them all at face-value -- of course, if the President-Elect changes policy then ... he changes policy):

Syrian Refugees -- One of President Trump's many campaign pledges has been his opposition to the admission of refugees from Syria -- calling them both a possible terrorist threat (because of a lack of vetting) and a threat to the American way of life. His son notoriously compared the refugees to Skittles. Leaving aside the questionable factual ground for this policy, how much of it can the President achieve? The answer is, not surprisingly, virtually all of it. The decision to resettle refugees is a federal responsibility under the 1980 Refugee Act, which authorizes the president to determine, on the basis of "humanitarian concerns or ... the national interest," how many refugees to admit each year. In 2016, President Obama set the number at 85,000, including 10,000 Syrians. Each year the President is obliged to consult with Congress in setting this goal -- and then the President has plenary discretion to work with the UN High Commissioner on Refugees to identify suitable applicants for resettlement. There is no legal obligation on the President to take any particular number of refugees or to select refugees from any particular group. Hence President Trump would be free to reduce the goal for refugee resettlement to zero if he wished -- or to maintain the current level but forbid any Syrian refugees from admittance. If we want to assess his chance of success in achieving his stated objective, a good estimate might be: 99%.

Build A Wall -- Another signature pledge of President Trump was to build a wall between the US and Mexico. DHS has ample legal authority to build infrastructure to protect the border. Indeed, the U.S. government erected its first border structure (fencing near San Diego) more than 25 years ago in 1990. Post 9/11 spending on border fencing and related infrastructure (things like lighting and roads) rose dramatically. According to the Washington Post, "since 2001 more than $7 billion has been spent to build what is now almost 653 miles of Southwest border fencing — costing nearly $5 million per mile in some spots — nearly half in Arizona." Assuming that "wall" costs would be the same as "fence" costs (unlikely -- brick and mortar costs for a wall would almost certainly be much higher than fencing costs), and assuming that buying in volume could drive down costs to $1,000,000 per mile (another heroic assumption -- the easy parts of the wall are already build and the remainder would be in remote areas where access and physical conditions would make construction harder, not easier), then for the 1300+ miles of as yet un-fenced Mexican border, the costs would be $1.3 billion. It will interesting, to say the least, to see where Congress finds the funds for the wall, and to watch the President seek funding for it Mexico. Chance of success: 85% for starting if Congress finds the funds but the implementation will be very difficult and completion of the wall during a 4-year term has a very low (10%) chance of occurring. [UPDATE: As it happens, just yesterday, CATO came out with a study of the wall. Their cost estimates are 10x higher than the one I used and if correct suggest that even 10% is a generous estimate.]

Sanctuary Cities - As the New York Times has reported, a number of urban centers have declared themselves to be sanctuary cities. Though there is no strict definition of what is a sanctuary city, it generally means that local law enforcement and social service agencies will decline to cooperate with the federal government and refuse to assist them in identifying illegal aliens for deportation. This policy of resistance has long angered Republicans who have, in the past, moved to limit or eliminate funding to cities that refuse assistance to immigration authorities. It is an open question whether President Trump could restrict federal funding to sanctuary cities unilaterally (though he may try) but he will be on solid ground in doing so if (as seems likely) a Republican Congress passes legislation authorizing those restrictions. Such legislation would almost certainly pass constitutional muster: Under South Dakota v. Dole, the federal government may, generally, withhold federal funds from states that do not conform to federal policy (in that case it was highway funds tied to raising the legal drinking age). There is a plausible argument against this power that might, however, be of some utility to the sanctuary cities: The Supreme Court has said (in New York v. US) that the federal government cannot coerce a State to act in a manner that impinges on its sovereignity. No funding rule has ever been deemed coercive in this way and a properly constructed sanctuary city bill would likely not be as well -- but one can see a decent argument that requiring state and local law enforcement to act to assist federal authorities might be construed as an impermissibly coercieve impingement. Chance of success: 70% because it probably needs legislation (which Senate Democrats may block) and because of the possible constitutional challenge.

Extreme Vetting -- As co-bloggers Michael Price and Faiza Patel have noted, the likely way that "extreme vetting" will come to be is through a reboot of the National Security Entry-Exit Registration program known as NSEERs. The program required special registration for visitors from a list of 25 countries and was (in my opinion) one of the most cumbersome and unhelpful security exercises in early DHS experience. As DHS itself said, NSEERS became obselete with the advent of automated entry-exist systems for all foreign visitors. So it would be a waste and nothing more than a show -- but it would be legal. Michael and Faiza make the argument that it would be unconstitutional even though NSEERS was upheld against challenge once already (importantly, I think, in the more difficult context of removal rather than the primary context of entry). They contend that the evident religious animus behind the reboot would guide courts to a different result. That's plausible -- but color me skeptical that any court would look behind the facially neutral justification advanced by an Administration to the words of a presidential candidate that predate a regulatory change as a ground for invalidating an otherwise lawful program. I am certain the challenges will come -- but I expect them to fail. Chance of Success: 70% given the possible legal challenge.

End DACA and DAPA -- President Obama directed DHS to take executive steps to defer the removal of children who arrived in the country illegally (the Deferred Action for Childhood Arrivals or DACA program) and, later their parents (the Deferred Action for Parents of Americans or DAPA program). President Trump has said he will end these "illegal" executive programs. The DAPA program never took effect -- it is the program that was enjoined in Texas as beyond the President's authority -- an injunction upheld in Supreme Court on a 4-4 vote. The DACA program began in 2012 and has been subject to 2-year renewals ever since. Because of the rush to implement these programs (that's my perception, at least) they were implemented through policy directives from the Secretary of DHS and never incorporated into any regulation. Thus, the DACA program could be terminated with the stroke of a pen from the next Secretary or, if they prefer a more orderly process, simply allowed to age out and not be renewed when the current cohort of 2-year deferments expire on their own terms. Either way, given the unilateral nature of President Obama's actions, an equally unilateral act by President Trump is also effective. Chance of success: 99%.

Deport Criminal Aliens -- President Trump has also promised to begin deporting between 2 and 3 million illegal aliens with criminal records. [Let's leave aside the inaccuracy of this number, for now -- though, oddly enough, the more the number is overstated the easier the President-Elect's goal will be to achieve.] With an important exception (discussed more below), the President is free reassign enforcement priorities as he sees fit and he can readily direct Immigration and Customs Enforcement (ICE) to focus their efforts on criminal aliens. But several factors are likely to significantly constrain the ability of the Trump Administration to effectuate this policy.

First, and foremost, there are resource constraints. Last year ICE deported roughly 240,000 individuals (a decline from a peak of 400,000 in 2012). And of that number approximately 70% are border deportations -- that is immediate returns of people stopped while attempting illegal entry. Put another way, last year only roughly 75,000 internal deportations for illegal aliens within the borders were undertaken. It is going to take a significant increase in resources to scale that number up (without, of course, diminishing the border effort). Even if ICE doubled its effort it might still take 10 years to completely remove 2 million individuals.

Second, there is the question of where to remove them to. As the Washington Post reports (and as I experienced first hand at DHS) lots of countries decline to accept the return of their citizens -- and who can blame them? Would you want a certified criminal returned to your country if you could avoid it? And so they take steps to make the process harder -- they deny that the individual is a citizen; they refuse to issue travel documents; and they, systematically, slow walk the process. China, for example, is notorious for its refusal to accept the return of its citizens and pressing too hard on the process risks collateral effects on other aspects of our relationsip. The US has had some success in pressuring small countries, but larger ones systematically resist.

Next, there is the process point: Which is to say that since they are now in our country each of the potential deportees is entitled to contest his removal in court (and to file, for example, a claim for asylum). According to one resource at Syracuse the current average time an immigration case takes to process is 800 days. Hardly a land speed record. Even if you assume that none of the cases opposing removal are meritorious (an assumption that would be wildly wrong), just moving that many people through the system will require (again) a significant increase in resources allocated. And, then, of course there will be those whose removal is improper.

Finally, let me note what I call the DAPA Kicker. As already discussed, the Fifth Circuit held that President Obama could not exercise his discretion to grant lawful status to aliens illegally present in the United States on a "class-wide" basis. Though the case is plainly different from the situation in which a President acts on a class-wide basis to advance removal, there is at least some relevance to the court's conclusion that class-wide classifications are subject to scrutiny. It would be an irony, indeed, if the Republican assault on President Obama's exercise of immigration discretion were, in turn, to be precedent for a legal effort to stymie President Trump's discretionary immigration decisions! Overall, chance of success (defined by me as removing a majority of criminal aliens within 4 years): 25% or less given the resource constraints and the international challenges.

So ... there you have it. A short survey of President-Elect Trumps immigration and border polices. In the end the chances of achieving his objectives are a mixed bag, but it is fair to say that he is more likely than not to achieve most of what he wants to achieve, despite the opposition of many.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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