Donald Trump is now the president-elect of the United States, and faces the daunting task of assembling a Cabinet, creating a White House staff for himself, and filling over 4,000 other politically appointed positions within the federal government. In many areas of governance, the Trump transition effort only began preparing detailed policy documents after the election. Speculation about many areas of policy has filled the media in the absence of any information about the direction in which the new administration will lead.
Much media discussion has focused on the president-elect’s proposed immigration policies, because they are one of the few areas where details are available. While campaigning, the president-elect did not talk about details in most policy areas, and even his campaign website contained detailed policies in only a few areas. Immigration was the area in which the campaign released the most detailed policy proposals. The only “policy address” of the Trump campaign was an Aug. 31 speech which listed 10 hardline anti-immigration talking points as policies.
Having campaigned on chants of “Build a Wall!” and promises to get rid of the “bad hombres” from the United States, the president-elect has appointed immigration hardliners to key positions. His chief strategist will be Steve Bannon, whose Breitbart media has only two kinds of immigration stories: “An immigrant committed a crime” and “An immigrant took an American’s job.” The immigration-related roles on the transition team are filled by two hires from Sen. Jeff Sessions’ office. Sen. Sessions, an early endorser and key advisor to the president-elect, worked tirelessly in 2006 and 2007 to convince Republicans in the House not to consider any immigration reform bill along the lines of the bill passed with bipartisan support in the Senate. Another key advisor will be Kris Kobach, the Kansas Secretary of State, who convinced the town of Hazelton, Pennsylvania to adopt his model anti-immigration ordinance (costing it millions of dollars in legal fees when it was thrown out by a federal court).
In the area of immigration, therefore, we have a reasonably good vision of the priorities of the new administration, many of which will be opposed by the mayors of major cities, including Philadelphia. Mayor Jim Kenney already announced that the city would continue to insist that federal immigration authorities, like all other law enforcement agencies, obtain a warrant before taking allegedly undocumented immigrants from police custody. This policy, referred to by immigration hardliners as a “sanctuary city” policy, will likely be challenged by threats to withhold federal funding from Philadelphia as part of the legislative process.
The first changes in immigration policy that will be noticeable in Pennsylvania will be in the area of enforcement. The new administration will be able to change the managerial incentives within the enforcement bureaucracy upon taking office, empowering individual supervisors and managers within Immigration and Customs Enforcement and Customs and Border Protection to use their authority as broadly as possible to increase the pace and number of removals. ICE detention facilities in our region, such as the spaces contracted by ICE at York and Pike County prisons and the detention center for mothers and children in Berks County, will be used to their fullest capacity.
Increased use of detention will likely be a key component of an enforcement-based strategy for dealing with the undocumented population. Any immigrant accused of being in the United States unlawfully, or accused of being deportable on the basis of a criminal offense, is entitled to due process of law. They are entitled to a removal hearing before an immigration judge, who will determine whether or not the government can prove they are deportable, and will determine whether the immigrant has any relief from removal available to them. The immigration courts around the country are already facing huge backlogs of cases waiting for adjudication, which means any increase in enforcement will make those backlogs worse. If the government has the capacity to detain immigrants accused of being removable, however, and if those immigrants are faced with long periods of imprisonment while waiting for their cases to be heard, they may elect to abandon any claim to relief they have and agree to be deported rather than being in prison facilities awaiting their day in court.
A second area of immediate change is likely to be revocation of President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) program. This program granted deferral of removal, and work authorization, to about 750,000 young people throughout the United States, about 10,000 of them in Pennsylvania. To qualify, these young people had to prove that they were brought to the United States as children, that they had no serious criminal records, and that they had completed high school or a GED. Many of these young people did not even know they were undocumented until they reached college age. During the campaign, the president-elect promised to roll back the deferrals of deportation that these young people received and revoke their work permits, and so we will likely see them engaging in public demonstrations to bring media attention to their plight.
What is most unknown is how many immigration hardliners will be granted positions of authority in the Trump administration, and how quickly they will move to assert executive authority to limit legal immigration. Should they wish to use the normal legislative and regulatory process, the public will be able to have input into these policies. It will also take time, given the other priorities of the new Congress for legislation and the notice and comment requirements of the Administrative Procedures Act for regulations. If the Trump administration finds these legal requirements frustrating their progress, they may push the president-elect to issue his own executive orders in the immigration area. Since federal courts allowed Texas to challenge President Obama’s executive actions, however, if the Trump administration tries to change the law by executive action, it may be open to challenge by immigrant-friendly states like California or by adversely affected businesses and universities.
Right now, lawyers are having to prepare their clients for a bad scenario—a more aggressive removal strategy, a continued impasse on changes to legal immigration programs and no path forward for the undocumented–and for a much worse scenario: an administration whose policy is entirely guided by immigration hardliners committed to radically reducing immigration to the United States, whether legal or illegal, through legislation, regulation or administrative action. We will watch closely during the appointment and confirmation process to see which leadership roles are given to moderates and which are given to immigration restrictionists as an early indicator of the direction the Administration’s policies will take.
Reprinted with permission from the November 15, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.