Trump's order on the deportation of undocumented residents, annotated by an immigration law expert

a. This is a very casual and sweeping reference to a complicated set of federalism issues. “Sanctuary jurisdictions” is not a settled phrase and is not defined in this EO. The label has been applied, sometimes in praise and sometimes in scorn, to a wide range of actions taken by state and local law enforcement agencies (SLEAs). At one end are SLEAs that refuse nearly all support and communication with DHS about persons thought to be unlawfully present, even if the person has committed serious crimes. At the far end of the “sanctuary” spectrum are jurisdictions that won’t keep a person in detention beyond the end of their local sentence to allow for ICE to pick them up (ICE sometimes requests this, for up to 48 hours) unless ICE pays the full additional cost. In between, one finds a huge variety of practices, such as cooperating with ICE only upon either the person’s formal arraignment or actual conviction of specified serious crimes.

b. With small exceptions, no federal law mandates that states or localities directly aid ICE in enforcement. For example, an ICE detainer, which requests notification of release and up to 48 hours of additional detention to allow ICE pickup, is, by ICE’s own analysis, merely a request, which the state or local law enforcement agency may ignore. Noncooperation can certainly be critiqued as a matter of policy, but it is rarely a clear violation of federal law. And there are constitutional limits on the extent to which even a new statute could mandate that states or localities participate in federal enforcement, under the Supreme Court’s anti-commandeering doctrine. That doctrine holds that the federal government may not require states to enforce federal laws. It may, however, authorize or encourage such a role, including through federal grants to participating states or the withholding of certain funding — as long as the withholding is not so big that the courts see it as unduly coercive.  

Though international law requires states to accept return of their nationals, “tens of thousands” is probably a fair estimate of aliens released into the US because of home-state delay or refusal of return. A 2001 Supreme Court decision placed a presumptive six-month limit on detention of deportable aliens while efforts to remove them are underway.  

The Supreme Court’s release rule applies even to convicted criminals. Because they have finished serving their criminal sentences by the time ICE gets them, the Court held that the commission of the crime can no longer justify extended incarceration. Further detention can be justified only by showing real progress toward removal.

A subtle slam on the large deferred action programs President Obama ordered, which generally included work authorization for the covered individuals. DACA (deferred action for undocumented individuals who came to the US before age 16, had been present five years, and had no significant criminal record), launched in 2012, remains in effect as of January 27, 2017. About 700,000 people have benefited. A broader Obama deferred-action order issued in 2014 (DAPA) would have covered perhaps 4 million others who have US citizen children, but a court stayed its implementation, and it is now clear that DAPA will never take effect.

An odd reference. The mention of Article II, Section 3 makes sense, because that section imposes on the president a duty “to take care that the laws be faithfully executed.” But this part of Title 5 merely sets forth the broad oath that officers of the United States must take when sworn in. There is no “faithful execution” reference there.

Removing such persons after a formal ruling against them may seem straightforward, but a high percentage, probably well over half, of the non-detained people ordered removed do not show up for deportation. This situation has existed through many presidencies, both Republican and Democratic. Part of the issue is the great delay in proceedings, often stretching over years while people develop deeper ties to their communities. And even after an immigration judge has ruled, the order may not be enforceable for years owing to appeals, first to the Board of Immigration Appeals and then to the courts. Finding the deportee after years of no direct contact is difficult and expensive investigative work, and DHS has only intermittently prioritized the use of resources for this purpose.

These priorities replace a set of priorities adopted by then–Secretary of Homeland Security Jeh Johnson in November 2014, and they sweep far more broadly. And unlike Secretary Johnson’s, they do not set up an internal hierarchy to indicate which categories should be emphasized when resources are short — as they always are. An old canard applies: When everything is a priority, nothing is a priority. In practice, this feature gives individual agents wide latitude to follow their own preferences — or perhaps biases. (Johnson placed in Priority 1 national security threats, persons convicted of serious crimes, and those caught at the border attempting illegal entry. Priority 2 included persons guilty of serious or repeated misdemeanors, recent border crossers, and those who committed significant visa abuse. Priority 3 covered people with a final order of removal issued after 2013.)

Before this order issued, President-elect Trump and his staff had often emphasized that they would energize removals but would prioritize “criminal aliens.” This was met with relief in some liberal circles, thinking the result would be something like Obama’s priorities.

But the earlier statements turn out to have been head fakes. This set of priorities seems to be designed so that the administration can say they kept to that “criminal alien” statement — but Section 5 stretches that category to its furthest extremes. There is no distinction between felonies and misdemeanors, and even people charged but not yet tried get thrown into this capacious criminal pot. Indeed, there doesn’t even need to be a charge — just an immigration agent’s determination that the person committed a criminal act, even years ago — presumably including even the misdemeanor of entering the US without inspection.  

This section seems designed to insist on use of certain enforcement tools enacted by Congress in 1996 but never implemented. Congress authorized civil fines of up to $250 on persons apprehended while trying to enter without inspection, but provided no clear procedure for levying. INA section 275(b). The cost and delay involved in the procedure would far outweigh any added punishment or deterrence from this small penalty, and INS chose not to proceed. Another unimplemented 1996 provision is more sensible, as a means to induce compliance with final removal orders, and probably deserves this closer look. INA section 274D provides for civil fines of $500 per day for persons who willfully fail to comply with removal orders when they become final.

Politicians wanting to show greater toughness on enforcement usually only call for more Border Patrol agents. (Trump’s other January 25 order called for adding 5,000 of them, but this ICE call doubles that.) If implemented, this provision may indicate a real commitment to invigorated internal enforcement. But like all these actions, it is subject to appropriations; see Section 18(b). Expect a real fight in Congress over so large an increase for ICE personnel. Unlike enforcement at the border, strict interior enforcement routinely steps on powerful toes, disrupting businesses or neighborhoods, suddenly taking away employees, or affecting individuals known to many influential community members.

Section 287(g) agreements authorize local officials, after training and under federal supervision, to assist with the investigation, apprehension, or detention of unauthorized aliens. The locals don’t get to issue removal orders or even formally initiate the removal process. That’s still for the feds alone.

This unassuming language is important. Section 287(g) agreements historically took two forms: the task force model, which gave authority to local officers to arrest solely for immigration violations, and the more limited jail model, which gave authority for locals to act only with regard to persons already validly arrested for a local, non-immigration offense. The task force model gave rise to allegations of racial profiling and in any case did not reliably mesh with federal enforcement priorities. As a result, the Obama administration eliminated many task force agreements and emphasized the jail model. The Trump order gives DHS the authority to remain choosy in this way. The secretary would be wise to concentrate on the jail model.

Section 1373 is actually a rather modest federal law, which does not force broad cooperation on unwilling states or localities. It merely says they may not forbid their employees from communicating immigration-related information to federal officials. The state or local law enforcement agency doesn’t have to collect or provide any requested information itself, and it can even remind its employees that they aren’t obligated to send such information. Section 1373 has been upheld by a leading circuit court case, but it has not been ruled on by the Supreme Court. It might still be vulnerable to a challenge under the Court’s anti-commandeering doctrine, which provides that the federal government may not dragoon states into enforcing federal laws. 

The order still provides no definition of “sanctuary jurisdiction.” Though the term is commonly applied more broadly (see comment 1), the preamble to this section and this subsection seems to tie it only to violations of section 1373.  Subsection 9(b) of the order, however, indirectly links the concept to declined detainers — a far more significant hindrance to ICE effectiveness. Complete funding cutoffs are basically the nuclear option to secure cooperation. Frugal and highly targeted use of this discretionary designation authority would be preferable, permitting the DHS secretary to rely primarily on cooperative outreach as a way of gradually restoring better cooperation with states and localities.  

Cutting all federal grant money to such jurisdictions, even by statute, would raise serious questions under the Supreme Court’s Obamacare decision from 2012 (NFIB v. Sebelius). The Court there overturned the part of the Affordable Care Act that withheld all Medicaid funding from states that failed to expand their Medicaid eligibility to conform to ACA rules. The Court regarded such a broad funding cutoff as unconstitutionally coercive. But narrower funding restrictions more closely linked to the specific federal interest would pass muster. President Trump would probably be able to cut grants clearly related to immigration enforcement, and maybe a wider range of law enforcement grants as well — but almost certainly not grants in unrelated fields like urban planning or environmental protection.

Secretary Jeh Johnson ended Secure Communities in that memorandum, but he retained one key operational component — the immediate sharing by the FBI with ICE, for checking of ICE’s databases, of fingerprints received from local jurisdictions taken at the time of arrest and booking. Secure Communities became highly controversial when it led to the ICE arrest of long-resident unauthorized immigrants, often based on mere traffic offenses. The political reaction led many localities to cut back more generally on ICE cooperation. The Priority Enforcement Program was designed to restore SLEA cooperation. It called for ICE to narrow greatly the circumstances in which custody requests or information requests would issue on the basis of those ICE fingerprint checks, so that jurisdictions would generally be asked to hold or turn over only persons with serious criminal offenses. PEP succeeded in winning back at least tentative cooperation from many SLEAs. President Trump’s decision to revive “Secure Communities” — even using that controversial name — is almost a taunt, likely to be counterproductive, strengthening the resolve of non-cooperating jurisdictions. 

This term refers to countries that refuse or delay the return of their nationals when the United States wants to deport them. INA Section 243(d) provides for the cutting off of visa issuance to nationals of a recalcitrant state, but the full sanction has been imposed infrequently — a longstanding sore point for those who favor strong immigration enforcement. In February 2016, ICE listed 23 recalcitrant countries, including China and India. As of late 2017, only Gambia was subject to an actual visa cutoff.

Services to crime victims make sense (though whether this is best done by ICE is debatable), and enhancing efforts to deport immigration violators who have committed violent crimes is also wholly justified. But this innocuous-sounding report requirement, coupled with Section 16 of this order, could signal something more problematic — the possible launch of ongoing high-volume publicity featuring the victims of crimes committed by aliens. (Candidate Trump took this tack in important settings on the campaign trail.) A drumbeat of such reports would skew an honest understanding of the dimension of the enforcement challenge facing this nation. The overwhelming majority of immigration violators are otherwise law-abiding; only a very small minority are implicated in violent crime. One can develop a genuine and resolute strategy for truly effective enforcement against immigration violations without demonizing the violators. We need balanced policy analysis about better interior enforcement, not the inflaming of passions through selective presentation of data or anecdote.  

A very important — and inescapable — qualification on the directives in the Order. President Trump can’t decree the blockage of funds to a sanctuary jurisdiction, for example, if the statute and regulations setting up the grant program did not include cooperation in immigration enforcement among the program’s requirements — nor provide discretion for the agency later to add further criteria.