This post is part of a series on the possible impacts of Trump’s election on a variety of social justice issues. Click here to read more.
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by Ray Michalowski*
As the great Yankee’s baseball catcher and American philosopher Yogi Berra once said, “Only a fool would make predictions. Especially about the future.” With that caution in mind, I am going to hazard a few predictions about the likely impact of Donald Trump’s election on immigration policy.
• Prediction #1
Shortly after taking office, President Trump will rescind the executive order establishing Deferred Action for Childhood Arrivals (DACA), initially issued in 2014 by President Obama.
Why Trump Might Rescind DACA. Trump listed canceling DACA as his number-one priority for his first 100 days in office, a promise that was highly popular with his anti-immigrant and anti-Mexican base (Politifact 2016). Reversing DACA is a low-hanging political fruit. Trump can easily fulfill this campaign promise because DACA was created by an executive order that the new president can rescind with the stroke of a pen (NBC News 2016, Le 2015).
Why Trump Might Not Rescind DACA. Allowing Dreamers to stay in the country, and eventually become citizens, is broadly popular with the American public, if not with Trump supporters. About 66% of the public believes that youth who meet DACA criteria should be allowed to stay in the country (Pew Research Center 2014). At the moment, Trump is a minority president. Wise political advisors (if he has them) might caution him against what would be an unpopular action. On the other hand, if he allowed DACA to continue, he would have to confront an angry base that wants undocumented immigrants out of the country.
Why Rescinding DACA Might Fail. Although rescinding DACA would be easy, removing the three-quarters of a million American-looking and American-acting young people will be a logistical and public relations nightmare for the Trump administration. Efforts to deport those with deferred action will be met with a firestorm of lawsuits that will tie up actual removal of Dreamers in the courts for years. The ACLU has already promised this. Also, many DACA youth are picture-perfect “citizens” who graduated from US high schools and colleges and who are serving in the military, working, building families and so on. They will get a lot of sympathetic coverage from news media, particularly because their undocumented status was not a result of their own actions. In the face of this, Trump may find it politically difficult to deport them.
• Prediction #2
Trump will propose suspending immigration from “terror-prone” countries and implementing “extreme vetting” of anyone trying to enter the US from “terror-prone” regions.
Why Trump Will Propose This. This too was one of his promises for the first 100 days in office. He will need to be seen making an attempt to block immigration and visitations from the Middle East to keep the anti-terrorist, anti-Muslim portion of his political base on board.
Why This Will Probably Fail. The U.S. Code section governing entry into the country sets forth a number of highly detailed criteria for refusing visas or immigration status (8 U.S. Code § 1182 – Inadmissible aliens). It does not, however, authorize blanket prohibitions on immigrants or visitors from specific countries or regions, or with particular ethnic backgrounds.
Some have argued that section 8 U.S.C.§ 1182 (C)(i) grants this authority (Swan 2015). However, this section reads that entry can be denied to “an alien whose entry or proposed activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”
This section refers to “an alien,” not to a class of people (i.e. people from specific countries or regions or with specific backgrounds). This language would in all likelihood require ICE to establish the “adverse” grounds in each individual case, opening any attempt at a blanket prohibition to a wave of lawsuits.
Also, this section refers to “adverse foreign policy consequences.” In other words, the government would be required to establish that allowing people from countries with large Muslim populations (and make no mistake, that is what Trump is talking about here) would somehow damage US international relations. Actually, the opposite is more likely. Denying Muslims entry is what would have negative foreign policy consequences.
• Prediction #3
Trump will make a half-hearted effort to “build the wall” and “have Mexico pay for it.”
Why Trump Will Do This. This was another thing Trump promised to do during his first 100 days as President. It was one of his most popular proposals, as can be seen in many videos with masses of supporters changing “Build the wall, build the wall.”
Why the Effort Will Be Half-Hearted. First of all, walling the US off from Mexico is a fool’s errand, and I don’t think Trump is a fool. History tells us that walls rarely work. Of equal significance, the United States has been trying to build a wall between the US and Mexico for the last 7 years. Currently, about 700 of the 2,000 miles of the border are walled off. Much of the remaining areas pose significant challenges due to terrain, as anyone who has spent time traveling along the US–Mexico border knows. According to the Department of Homeland Security, building a large and solid wall between the US and Mexico on this terrain will likely cost $10 million per mile (Global Security 2016). This comes to around 13 billion dollars, almost half again as much as the 8 billion dollars Trump quoted for his proposed wall. This is only the cost to build it. The cost of maintaining such a wall would be significant, something that is rarely mentioned by proponents of the wall.
It is my guess that cooler heads in Homeland Security and elsewhere will prevail. There will be some expansion of the current wall to make it appear that the Trump administration is keeping its promise, but the “great, great wall” between Mexico and the United States will not be built on Trump’s watch. It has taken 7 years to wall off the easiest 700 miles. There are 1,300 miles to go. Do the math.
Attempts to extend the wall along the entire border will also be bogged down by lawsuits, since much of that land is either critical habitat or Native American land. I would not be surprised to see activists creating encampments to protect these areas and/or to protest the wall. These will prove another legal and public relations headache for the Trump administration, just as the Dakota Access Pipeline protests proved for the Obama administration.
As for getting Mexico to pay for it, that was campaign bluster. It can’t be done. Mexico is a sovereign nation, and one that is more than a little concerned in protecting itself against US pressure. Mexicans will not pay for the wall unless they are given something of equal or greater value in return, which means US taxpayers will be footing the bill anyway.
• Prediction #4
Despite Trump’s promise to deport the estimated 11 million undocumented immigrants living in the United States, by the end of his first term the number of undocumented immigrants living in the US will be only slightly smaller or about the same as it is today.
What Will Trump Do? Shortly after taking office, Trump will order ICE to begin mass deportations of undocumented immigrants from the United States. He promised to do this, and risks significant political backlash from many of his supporters if he does not at least appear to be trying.
What Will Happen? Deportations under President Obama were higher than at any time in recent history—nearly 500,000 people a year. About half of those deported had criminal convictions, although the majority of offenders deported had not committed the kind of serious felony offenses the policy was supposed to target (Rosenblum & McCabe 2014).
Obama’s deportation efforts have strained ICE and the immigration courts. Since the majority of undocumented immigrants in the country have been here for more than five years, they are entitled to a hearing in an immigration court. People who have built lives in the United States are not likely to accept deportation easily. They will ask for hearings on their cases. Currently the immigration court backlog in many jurisdictions is running about three years (Human Rights First 2016). The present system simply cannot manage mass deportations without collapsing.
Mass deportation will require either that Congress repeal the right to an immigration hearing or provide significant new funding allocations for a massive expansion of ICE and the immigration court system.
It is my expectation (and hope) that Congress will not eliminate judicial review for immigrants. Doing so would be a fundamental strike against the rule of law and would hopefully not survive significant legal challenges. Whether or not Congress would fund a massive expansion of ICE and immigration courts is an open question, and my crystal ball is rather murky on this.
Dangers. A potential danger lurks behind calls for mass deportation. There is a possibility that emergent vigilante groups or current Three Percenter militias will take it upon themselves to round up undocumented immigrants and turn them over to ICE. This would be illegal. However, given that the Fraternal Order of Police and a union representing immigration officers endorsed Trump’s candidacy, there is the (hopefully remote) possibility that these law enforcement agencies will stand aside and let the vigilantes facilitate mass deportations. This would create a significant divide in the law enforcement community and seriously undermine the rule of law in the United States.
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• Global Security. 2016. US-Mexico Border Fence /Great Wall of Mexico Secure Fence. Viewed online at http://www.globalsecurity.org/security/systems/mexico-wall.htm.
• Human Rights First. 2016. “Reducing the Immigration Court Backlog and Delays.” Viewed online at http://www.humanrightsfirst.org/sites/default/files/HRF-Backgrounder-Immigration-Courts.pdf.
• Le, Van. 2015. “Snapshot of Polling and Public Opinion on Immigration Executive Action & Larger Debate.” Viewed online at America’s Voice, http://americasvoice.org/blog/snapshot-polling-public-opinion-immigration-executive-action-larger-debate/.
• NBC News. 2016. “4 Years Later: Lives Built By DACA at Risk in 2016 Elections.” Viewed online at: http://www.nbcnews.com/news/latino/4-years-later-lives-built-daca-risk-2016-elections-n592121.
• Pew Research Center. 2014. “5 facts about the Deferred Action for Childhood Arrivals program.” Viewed online at http://www.pewresearch.org/fact-tank/2014/08/15/5-facts-about-the-deferred-action-for-childhood-arrivals-program/.
• Politifact. 2016. “Donald Trump’s campaign promises for the first 100 days.” Viewed online at: http://www.politifact.com/truth-o-meter/article/2016/nov/10/donald-trumps-campaign-promises-first-100-days/.
• Rosenblum, Marc and McCabe, Kristen. Deportation And Discretion: Reviewing the Record and Options for Change. Washington, D.C.: Migration Policy Institute.
• Swan, Ben. 2015. “Reality Check: Trump Right About Legal Authority to Ban Muslim Immigrants.” Truth in Media. Viewed online at: http://truthinmedia.com/reality-check-trump-right-legal-authority-ban-muslim-immigrants-pres-candidates-hypocritical-muslims/.
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* Raymond Michalowski is Regents’ Professor of Criminal Justice at the Department of Criminology and Criminal Justice at Northern Arizona University. His research areas include criminological theory, international human rights, immigration and border policy, and corporate, environmental, and political Crime. Recent publications include State Crime in the Global Age (with William Chambliss and Ronald Kramer) and State-Corporate Crime: Wrongdoing at the Intersection of Business and Government (with Ronald Kramer).