All along, Trump has claimed his goal is enforcing the law. Speaking at the Department of Homeland Security (DHS) Trump said that he “ordered federal employees to enforce the laws as they are currently written.” Secretary John Kelly, while still heading the DHS, put it even more simply, saying, “the law deports people. Secretary Kelly doesn’t.”
Laws don’t enforce themselves. People make decisions about enforcing them.
That formulation is far too simplistic. Laws don’t enforce themselves; people make decisions about how to enforce them. That’s why the same laws are enforced differently from one county sheriff to the next — and from one U.S. president to the next. Enforcement is where the law is figured out, in practice, involving tinkering, experimentation, conflict, and negotiation among stakeholders.
In immigration enforcement, those stakeholders include individuals employed by Immigration and Customs Enforcement (ICE), the Border Patrol, many local and state law enforcement agents, and even immigrant organizers and immigrants affected by laws.
In two important ways, when looking for and deporting immigrants without lawful status, Trump’s administration isn’t simply enforcing the written law. First, whether a migrant has a legal right to be in the United States must be adjudicated in immigration courts; some undocumented residents have a right to remain. Second, locating migrants who may lack legal status requires surveillance and policing that are also constrained by laws, including laws protecting civil rights. And certain forms of policing are not lawful.
Two contemporary immigration enforcement programs — Secure Communities (S-Comm) and the so-called §287(g) program — reveal how enforcement often goes beyond legislative mandates or runs afoul of other legal principles.
What is ‘Secure Communities’?
Launched by DHS in 2008, S-Comm is an information-sharing system in which local law enforcement checks an individual against FBI databases — which automatically forward biometric data to the DHS. If the DHS query reveals unlawful presence, Immigration and Customs Enforcement, or ICE, can transfer a prisoner to federal detention and/or (eventually) deport them. This means that immigrants may be detained or deported as a result of a simple contact with law enforcement. Since 2008, S-Comm has identified more than 2.4 million migrants living in the U.S. as deportable. More than 400,000 individuals have been deported as a result.
ICE oversees S-Comm. It has argued that S-Comm grew from a congressional mandate to modernize and automate enforcement and deportation, citing three sources of law:
- the PATRIOT Act, issued in 2001, which instructs that visa-granting agencies have access to FBI databases to check applicants’ criminal records;
- the Border Security Act, which requires that “ ‘any federal official responsible for determining an alien’s admissibility and deportability’ have access to ‘an interoperable law enforcement and intelligence data system”; and,
- the FY2010 DHS congressional appropriations bill, which requires ICE to devote at least $1.5 billion “to identify aliens convicted of a crime who may be deportable, and to remove them … once they are judged deportable … [and to] prioritize … by the severity of that crime.”
Reading these sources, you might think that S-Comm would focus squarely on (1) checking visa applicants’ criminal records, (2) checking individuals encountered by federal agents for admissibility or deportability, and (3) identifying convicted criminals who are deportable as a result of their criminal activity.
But that’s not so. A significant share of S-Comm deportations do not have serious criminal convictions. A 2013 study revealed that fully half of deportations processed that year under S-Comm resulted from traffic and/or immigration violations associated with irregular status or past irregular entry. That’s because, in practice, local and state law enforcement officials use S-Comm to check immigration status for everyone they arrest. Law enforcement usually uses S-Comm when individuals are booked into a county or state jail. That means ICE is notified about a multitude of individuals – most of whom haven’t been charged with a crime, or who may have been charged but have not been convicted. In short, S-Comm scrutinizes a population much larger than the one legislators had in mind.
What is the ‘§287(g) program’?
Another example of how enforcement can exceed the letter of the law comes from the §287(g) program, which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but went into force only in 2002. This program gives local law enforcement powers to enforce federal immigration law, as appointed representatives of federal immigration authorities. That means police, sheriffs, and state troopers can investigate violations, make arrests, jail suspected violators, transport detainees and build deportation cases – not because they’ve committed other crimes, but simply because they have violated immigration law.
The program §287(g) has been enforced in two ways. In some cases, police ask questions about immigration during the course of routine beat policing. In other cases, police query immigration status when booking someone for arrest.
The agencies using the first §287(g) approach have especially been challenged when it’s suspected that law enforcement is making traffic stops for no other reason but as pretexts for checking immigration status. That’s unlawful. Most famously, this led to a federal investigation and civil suits against Sheriff Joe Arpaio in Arizona, who was found guilty of contempt of court – and whom Trump pardoned in August 2017.
Because of those civil rights challenges, DHS has shifted from that approach to the second one, checking status when someone is being jailed. But that still gives local police discretion and leaves the door open to charges of racial profiling. It’s easy for law enforcement officers to “find” probable cause and/or reasonable suspicion to book individuals into custody – just as pretexts for checking immigration status.
These law enforcement approaches are not static
In other words, S-Comm and §287(g) aren’t simply being enforced; figuring out how they can and should work in practice is an ongoing interaction among the text of the statute, various agencies’ agendas, executive priorities, mayoral and gubernatorial objections, immigrant communities’ and civil rights groups’ responses, and the courts. S-Comm relies on broad surveillance mechanisms that weren’t envisioned or mentioned in the original legislation. And enforcement of §287(g) has had to change because of serious charges of racially-based pretextual policing.
That dance will surely continue as the Trump administration works to extend the laws’ reach and others challenge those efforts.
An earlier version of this post incorrectly stated that Donald Trump announced his candidacy in 2016. We regret the error.
Inés Valdez is a 2017-2018 Laurance S. Rockefeller Visiting Faculty Fellow at the Princeton University Center for Human Values and an assistant professor of political science at the Ohio State University.
Mat Coleman is an associate professor of geography at the Ohio State University.
Amna Akbar is an assistant professor of law at the Moritz College of Law at the Ohio State University.