Democrats in Congress have a problem on immigration law and enforcement. Rather than fix the problem, a growing number of lawmakers have decided to embrace slogans to deflect from Capitol Hill’s own failure to anticipate the outcomes of the laws passed by Congress. The sudden demands to “abolish ICE!” not only lack coherence, but ditches responsibility instead of addressing the problem effectively.
Donald Trump’s campaign featured immigration enforcement as one of the highest priorities. Trump wanted to build a wall on the Mexican border, and demanded prosecution for anyone crossing that border illegally. Trump’s win, plus the thin Republican majorities in both chambers of Congress that the 2016 election produced, made it clear that enforcement would get more emphasis in the new administration.
The implementation of Trump’s zero-tolerance agenda by Attorney General Jeff Sessions has turned into a well-earned headache for the administration, which should have anticipated the political blowback from family separations. The confluence of mandates in the Flores settlement and the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) required children to be detained separately from adults when holding the latter for prosecution. This was a well-known consequence that had disincentivized broad prosecutions—and encouraged adults to drag children across the border with them. While those outcomes have occurred for years, the sudden expansion of zero-tolerance prosecution drove the numbers of family separations up to gut-wrenching levels.
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Those outcomes and the political impact of the enforcement have not gone unnoticed within Immigration and Customs Enforcement (ICE). Nineteen supervisors within its Homeland Security Investigations (HSI) unit wrote a letter to DHS Secretary Kirstjen Nielsen protesting the impact of the policy of total enforcement, asking for a reorganization to make their unit independent. “Many jurisdictions continue to refuse to work with HSI because of a perceived linkage to the politics of civil immigration,” the supervisors informed Nielsen. However, the letter also argued that the tension between HSI and ICE’s enforcement-removal operations was sky-high long before the current political moment, and that such a split would eventually be necessary anyway.
Still, ICE neither created these restrictions nor set the zero-tolerance policy in place. ICE follows the laws passed by Congress, their interpretation by the judiciary, and the enforcement priorities of the executive branch as it has since its creation in 2003. That hasn’t stopped opponents of those enforcement priorities from demanding ICE’s abolition—while doing nothing to fix the underlying problems.
Those calls haven’t just come from the lunatic fringe of the party, either. Kirsten Gillibrand became the first senator to call for abolishing ICE. Gillibrand’s comment came as part of a defense against accusations of cold-shouldering Democratic Socialist Alexandria Ocasio-Cortez in a House primary, but was followed quickly by Elizabeth Warren and Kamala Harris. A handful of House Democrats have also called for abolishing the enforcement agency; Rep. Nydia Velázquez issued a statement saying that ICE’s abolition was “not enough to halt Donald Trump’s deportation machine.” New York City mayor Bill DeBlasio jumped on the abolition bandwagon as well.
House Democrat Mark Pocan is now drafting an “abolish ICE” bill that doesn’t actually abolish anything; instead, it creates a “commission” to run ICE rather than the executive branch, an option that would run into immediate constitutional issues. Even apart from this obvious flaw, the commission would have to wait for direction from Congress to act. “It’s supposed to come back to Congress,” Pocan told NBC News, ignoring the fact that Congress is failing to assert its authority to write statutes now. Pocan puts the blame on ICE and its “brand,” but ICE finds itself stuck between a legitimate policy of tougher enforcement and a legal minefield that Congress can and should fix. As long as the statutes remain on the books, the executive branch has a responsibility to enforce them, whether the agency is called ICE or Happy Family Fun Time Agency.
Ironically, the momentum on this hyperbole was momentarily halted by none other than the Congressional Hispanic Caucus. As The Daily Beast reported, the Democratic group on Capitol Hill began distributing their arguments against calls for the abolition of ICE, even while arguing that its border enforcement was “inhumane and harsh.” However, the group pointed out that ICE and its 20,000 employees do a lot more than enforce border security, such as human trafficking, firearms smuggling, and counterterrorism. The counter to bad policy is to set better policy, the Caucus argued, not to wipe out an agency that has many different responsibilities, most of which have broad bipartisan consensus in both scope and execution.
Abolishing ICE, or even just the components responsible for border security, amounts to cutting off one’s nose to spite one’s face. Family separations are wildly unpopular, and for good reason, but border enforcement is not. A Harvard-Harris poll from last week shows 88% of Americans opposed to family separations, but 70% in favor of stricter enforcement of immigration laws. Majorities oppose the so-called “catch and release” policies forced by the Flores settlement and the TVPRA (55%), prosecuting illegal border crossers (64%), and deportation (64%). Even with the controversy of family separations at the top of the headlines, the same political consensus on immigration policy that put Donald Trump in office remains.
That puts the onus on Congress and the White House to work out solutions to bad outcomes. Instead, the people elected to deal with these issues have tried everything except work on the actual problem. The American people want both tough enforcement and humane treatment, which are not mutually exclusive conditions. Chanting slogans to shift the blame for years of failure reflect much more on the career politicians leading the “abolish ICE!” campaign than it does on the professionals stuck with a very tough job.
UPDATE 5:39 PM: Rep. Pocan's office reached out to me after publication to explain that I had misunderstood the explanation of the proposal in Pocan's NBC News interview. The bill would abolish ICE and then form a commission to determine what should replace it. ICE's "necessary" tasks would get shifted to other agencies while the laws that require enforcement remain on the books. Presumably, that includes border enforcement since those laws would still be on the books while Congress outsources its legislative responsibilities to the commission.
One has to wonder why Congress requires a commission to legislate, and why it's not just easier to change the laws that create the objectionable outcomes rather than spend months or years asking other federal agencies to handle immigration and customs enforcement missions outside of their own missions while they wait for the commission to make recommendations.
