Cristina Rodríguez: Kelly memos illustrate marked shift from targeted to maximal enforcement philosophy on immigration
The memos frame immigrants as a threat to public order, she writes, and call for a dramatic expansion of state power
Editor’s Note: Cristina Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. She served as Deputy Assistant Attorney General in the Office of Legal Counsel in the US Department of Justice from 2011 to 2013. In a forthcoming book from Oxford University Press (with Adam Cox of NYU), she explores how presidential administrations have used their enforcement power in immigration and beyond to shape regulatory and social policy. The views expressed here are solely hers.
On Jan. 25, President Trump issued two executive orders calling for the dramatic expansion of immigration enforcement in the name of public safety – at the border and throughout the United States.
Through guidance memos leaked to the press over the weekend and officially laid out by the Trump administration on Tuesday, we caught a glimpse of the policies that will bring those executive orders to life. Signed by Department of Homeland Security Secretary John Kelly, the memos embody a wholly different philosophy of immigration – and by extension, the country itself – than the signature initiatives of the Obama administration put forth.
The Kelly memos frame immigrants as a threat to public order and seek to use the government’s enforcement authority to the maximum extent allowed by law.
This approach entails a dramatic expansion of state power: the near-mandatory use of detention at the border, wider use of expedited removal (which results in deportation without meaningful hearing and review), deepened suspicion of unaccompanied minors crossing the border, and a massive build-up of enforcement personnel.
In both tone and substance, these memos mark a sharp departure from the Obama administration. Though the Obama DHS removed hundreds of thousands of people a year, it also espoused the view that many people in violation of the law nonetheless had social, economic, and familial ties to the United States that justified their presence.
Perhaps the best indication that we have transitioned from one regime to another is the way the Kelly memos define the behavior that warrants removal.
Under Obama, the DHS issued memos directing agents to pursue only removable non-citizens who had committed serious, dangerous crimes, as well as those who had already been ordered removed.
When it proved difficult for the DHS to advance those priorities, President Obama announced his deferred action initiatives, including DACA, which constrained officials’ discretion to enforce the law and insulated unauthorized immigrants brought to the United States as youth from removal.
By contrast, the Kelly memos define “criminals” more broadly to include those who have committed even minor offenses, such as petty drug crimes, and people who have been charged but not yet convicted of crimes. More glaringly, the memos also target as priorities for deportation non-citizens whom officers believe to have committed acts that would count as crimes, such as purported gang members (though removal itself must still be based on a statutory ground, as the executive cannot simply deport people for alleged bad acts).
These priorities are so sweeping that they open up considerable space for bias in enforcement and will enable and encourage immigration officials to arrest and remove almost anyone who comes before them.
Not only do the Kelly memos encourage immigration agents to cast a wide enforcement net, they also limit officials’ powers to exercise prosecutorial discretion and decline to bring a case for humanitarian reasons. The memos eschew exempting categories of people, no matter how sympathetic, from prosecution. And they constrain the agency’s authority to grant “parole,” or temporary and discretionary entry to the United States, emphasizing that officials may use the authority only in discrete cases and only where there is special need.
To amplify the new enforcement mission, the Kelly memos also detail plans for DHS to use state and local officials as force multipliers by reinvigorating cooperative programs that the Obama administration sought to limit. These include the 287(g) program, which allows local police to serve as immigration officials, and the Secure Communities initiative, which relied on local officials to assist ICE by detaining removable non-citizens arrested at the local level.
Defenders of the Kelly memos could say that each of these moves is truer to the laws that Congress has enacted, not least because they seek to enforce the law as completely as possible. But as with all law enforcement, discretion in immigration is vital to tempering the law’s excesses and to balancing the administration’s interest in public order with the lived realities of immigrant communities.
How this difference in philosophy – between maximal and targeted enforcement – will translate into practice remains to be seen, as DHS will face numerous roadblocks in rolling out the Kelly memos. The expansion of enforcement capacity that the memos outline will take more than moving existing agents and resources around. Congress has never been shy about allocating significant resources to immigration enforcement, but precisely because they have already appropriated substantial money over the last three decades, they might not be willing to allocate the amount of money required to support Kelly’s maximal enforcement agenda.
The courts could also end up curtailing some of the administration’s plans. The expansion of detention is almost certain to bring challenges to its legality, as well as to the conditions of detention. The plan to beef up expedited removal is likely to spark a constitutional challenge. Though such challenges have failed in the past, neither the Bush nor Obama administrations tested the limits of the law to apprehend and deport non-citizens far into the interior.
States and localities across the country are also likely to resist. Even when the 287(g) program was at its peak in 2007, just over 70 local jurisdictions out of the many thousands across the country agreed to participate. Police chiefs in major cities, in particular, are not likely to be avid immigration enforcers – some are already on record disputing this approach – and the Supreme Court’s federalism doctrines will largely prevent DHS or Congress from requiring that localities assist federal enforcement efforts.
The day-to-day realities that face a large bureaucracy like DHS – enforcing the laws that Congress enacts and trying to control how operations actually unfold in the field – could mean Trump’s record of enforcement will not differ terribly much from Obama’s. But the Kelly memos and the executive orders they implement try to use law as a blunt tool for realizing the extreme positions on immigration at the heart of Donald Trump’s campaign, building a forbidding wall around the country without so much as laying a brick.