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The Stickiness of an Uncomfortable Slogan

I don’t like sloganeering. At its worst, it is a conduit for lies and libel, and the medium of scoundrels. At best, slogans are an invitation to bumper-sticker discourse, wrapped in a threadbare veil of truth. So, no surprise, the pinning of the moniker Deporter in Chief on President Obama induces a cringe, not because it is wholly underserved, but rather because its simplistic formulation obscures the full texture of the issues. In so doing, it not only disables focus on executive measures that Obama can deploy, but distracts from a discussion of the fundamental nature of our national ambivalence toward immigration, and from the deplorable body of law currently on the books.

So I don’t like it.

However, a good part of my discomfort is that the label contains an irrefutable element of validity: Yes, we are closing in on two millions aggregate removals since Obama took office. The number does not lie. And yes, it has served as an effective rallying cry for proponents of immigration reform, some of who seem willing to apply pressure on the administration to the point of hostility, at the risk of deflating Hispanic turnout in November. It is hard to fault them: reform activists and immigrant families who have been hurt by our immigration system are calling them as they see them, and do not necessarily feel compelled to pull their punches on behalf of a desired electoral outcome. Nevertheless, rather than brandish a label like a pitchfork, I prefer to weigh the allegations it implies in their full complexity, attempt to understand what makes Obama pull his punches, and measure the chances that the administration will move on immigration reform in defiance of the threats of blackmail oozing from the House majority.

One of the more damning details to emerge from an extensive New York Times article on April 7, 2014 was the brazen attempt by the administration to manage immigration policy by numerical objective: 400,000 removals, a target “scrawled on a whiteboard” by immigration officials. The implication is that should the number of deportees removed because of the menace they genuinely pose to public order fall short of the predetermined goal, ICE would simply cast a wider net to make up the difference. This smacks of political expediency and promotes deportation for its own sake, or for that of politics, without reference to any higher purpose. The details emerging from the data, including that recently tabulated by the Transactional Records Access Clearinghouse (TRAC Immigration) at Syracuse University, portray a disturbing zealousness in current deportation practices, a variant of those from the Bush era, yet carried over from it. Lack of cogent purpose has been the hallmark of immigration policy for decades. (When we delve into the earlier history of immigration enforcement we often discover a purpose we would rather not discuss: social and racial control.)

Further darkening the image of two million aggregate deportees is the administration’s stubborn embrace of Secure Communities, a crude device trawling for deportation candidates and, in the view of many law officers, an impediment to effective police work. Secure Communities mandates that anyone booked by a local police force must have their identity crosschecked, via fingerprints, with federal records to determine his or her immigration status, potentially setting in motion removal proceedings. The result: communities that feel targeted have less incentive to trust their local police and participate in crime prevention lest they be caught in the clutches of immigration enforcement. Ironically, having set a high bar for deportations has undermined even the misguided political calculation whereby President Obama would earn Brownie points on enforcement from conservatives that he could then trade for support on lasting reform. Instead, conservatives have relentlessly accused him of abetting an alien invasion anyway, while at the same time he has estranged many who have supported him politically.

The sadder irony is that Secure Communities and the numerical deportation targets have obscured the more positive changes in deportation practices Obama has implemented. The New York Times was a little too dismissive in a recent editorial of the Deferred Action for Childhood Arrivals (DACA) decision as so much low hanging fruit, since it addresses a particularly sympathetic group, the Dreamers. In fact, DACA is no trivial pursuit; it could benefit more than 1.5 million young people, many ­– arguably most – of them American in every way accept their papers.

A thorough reading of Obama’s record on deportation reveals a more accurate and useful picture of the effect of his policies, warts and all, than any slogan can. In addition to DACA, Obama has redirected immigration prosecutions through prosecutorial discretion (with limited results; 6.6% of cases before the immigration courts were closed via prosecutorial discretion) and apparently fostered an atmosphere in immigration court that has led to a large percentage increase in judgments favorable to relief, a radical change from the Bush years. (See my previous blog for an analysis of this trend.) Overall, interior deportations ordered by immigration courts have plummeted, by some 45%. I have to believe that this has benefited many resident immigrant families threatened with forced separation of husbands from wives and children from parents. The insensitivity, to put it mildly, of our immigration law and deportation practices to the unnecessary suffering of families is a major theme of my book, Passaic, and a dark stain on this country’s human rights record.

So that’s the good news, deportations from the interior have ebbed and DACA is a remarkable demonstration of concern on the part of the president. The story gets a little tougher from there.

The New York Times headlined its April 7 article on deportations with the assertion that “More Deportations Follow Minor Crimes.” Much of the analysis focused on the government’s emphasis of removing immigrants at the border, often without a hearing, and on the share of minor offenses in the total number of deportations triggered by criminal activity: traffic violations, simple drug possession, criminalized immigration offenses, etc. I will note here that the very use of the phrase “criminal alien” throughout the history of immigration enforcement has been intentionally inflammatory in order to accredit the public safety argument underpinning a very harsh, cookie-cutter deportation apparatus. The Times’ conclusion is certainly true, although it is not really news: the enforcement trigger has always been very broad, with the effect of snaring many people guilty of only minor infractions.

A more involved litmus test for assessing the effect of Obama’s proclaimed emphasis on serious criminals requires the examination of the increase, during the Obama presidency, in the deportation of persons convicted of genuinely serious crimes relative to that of total removals. TRAC Immigration provides the granular data to help determine this. In the five-year period from 2008 to 2013, excluding those solely pursuant to immigration offenses, deportations of persons with criminal convictions grew 70%. Aggregate deportations following criminal convictions for assault, weapons offenses, homicide, kidnapping and sexual assault, grew only 39%, i.e., a little over half the rate as the total, suggesting not only a below-average emphasis on violent crime as a deportation trigger, but an actual de-emphasis over the period. The result is also in keeping with the tepid impact of prosecutorial discretion on the mix of criminal deportation triggers. I have used specific crime categories rather than the three crimes levels defined by Immigration and Customs Enforcement (ICE) because ICE’s classifications of seriousness often tie to the potential severity of a sentence rather than to the intrinsic nature of the deportable crime. That said, the New York Times arrives at the same conclusion as I using reported crime levels, i.e., that deportations of serious criminals have been on the decline, not the other way around.

Simultaneously, and notwithstanding the overall sagging of deportations in 2013, we have witnessed a boost in the number of immigration-specific offenses in the total numbers that contrasts with the decrease in the aggregate number of removals, including those following crimes. This result reflects twin phenomena: One, the noted shift from the interior to the border, an outgrowth of stepped-up border surveillance; and, second, the decision to formally charge immigration offenders in expedited removal proceedings, rather than allow them a hearing in immigration court, or the option of voluntary departure. This in turn has the effect of goosing both the total deportation numbers and those defined as the removal of “criminal aliens.” Further, charged deportees are barred from reentering the United States, typically for ten years or longer.

The logic behind expanding border removals while interior deportations slip is seductive, but flawed. The administration argues that the removal of people without a home in the U.S. is less disruptive to established immigrant communities than deportations from the interior, and less likely to affect families that include American members. That sounds plausible, and administration officials may even have believed it at one time. However, removals at the border can often be of persons rejoining a resident family, a point made forcefully by the National Immigration Law Center. Also, if the administration’s goal has been to mitigate interior deportation practices, why has it insisted on deploying Secure Communities, a blunt instrument if there ever was one? Something doesn’t quite add up. Finally, I would consider the possibility that the combination of judges increasingly emboldened to reject government requests for removal orders and the limited ability of a mere 250 judges to process cases would cap the number of deportations from the interior in any event. In fairness, I would partially credit the Obama administration with creating the conditions for a less banishment-happy atmosphere in the immigration courts; the balance of the credit probably goes to economic conditions having improved enough to inspire some moderation on the part of the courts, mirroring that of the political climate.

So what to make of all this? Is Obama’s pro-reform stance insincere? Is he as hog-tied by immigration law as he claims to be? And most importantly perhaps, why has he insisted on maintaining deportation levels at or near records? Let me be clear. I do not believe Mr. Obama is being disingenuous on immigration reform. Yes, he does want it. No, he takes no pride or joy in separating families, and he bristles at suggestions of insensitivity. He did enact DACA above the howls of protest from conservatives, and the immigration courts are being more assertive of their notional autonomy, as limited as it remains. Nevertheless, we cannot ignore the disconnect between what I believe are Obama’s heartfelt convictions and the administration’s enforcement policies.

So how do we explain the disconnect? It’s not easy, but I’ll try.

There clearly has been a political gambit behind Obama’s enforcement push, designed to demonstrate to conservatives that he was not shirking his duty under current law, as bad as it might be, to administer it vigorously. The notion that his political opposition would reciprocate by cooperating on comprehensive reform was flat-out delusional. We have seen a pattern in this apparent pipe dreaming: for virtually every concession the president has made on contentious issues from the budget deficit to health care reform, the reward has been more stonewalling and disregard for the merits of any policy proposal up for debate. The miscalculation in immigration enforcement has been compounded by the notion that expedited removals at the border (which can encompass U.S. territory within 100 miles of it) have little impact on immigrant family unity. This is clearly not the view of immigrant advocates, nor, for that matter of the former acting director of ICE from August 2013 to last February, John Sandweg, commenting on the removal of non-criminal re-entrants: “Many of these people have been in the United States for a decade or more. They often have spouses who are U.S. citizens and have never been convicted of a criminal offense. Frequently, they were deported years earlier and returned to this country to reunite with their families. As a result, focusing ICE's effort on them disproportionately separates parents and children, breadwinners from families, spouse from spouse.” (Los Angeles Times, March 24, 2014)

A similar miscalculation has informed deportations facilitated by the Secure Communities program, which has done nothing to soften conservatives’ smoldering hatred of Mr. Obama, and succeeded in alienating immigrant communities and in frustrating police departments around the country. (California went as far as to legislate non-compliance with Secure Communities through the Trust Act.) Mr. Obama’s efforts at bipartisanship have failed, although inexplicably he has persisted in falling on his sword to promote it throughout his five years in office. The president seems to believe that his legacy is better served by futile attempts at conciliation than by acts of defiance, even successful ones, toward a rabid and often venal opposition.

But this cannot be the sole explanation. There must be more. Mr. Obama, despite constant accusations of imperiousness, is highly – maddeningly? – sensitive to the limitations of his office, and has pressed this point with immigration reform advocates, as was reported by the New York Times: The president “kept saying that he was not above the law, and that if we were suggesting that he stop enforcing the law then there was no point in continuing the conversation.” In the president’s own view he already goes to great lengths to prioritize his duties under the law to fit policy goals, as he has done with DACA (effectively) and prosecutorial discretion (not so much.) There is some truth to the president’s protestations, although not enough to fully account for the enforcement zealousness of Secure Communities and expedited removals of non-criminals in order to reach pre-set numerical deportation targets. Mr. Obama, I would maintain, is correct to assert that the crux of the problem is our punitive immigration code, which he had absolutely nothing to do with enacting. Nor did he advocate the mandate of a daily minimum of 34,000 detainees in immigration detention. (That brilliant idea was slipped into the Department of Homeland Security’s annual spending bill by then Senator Robert Byrd, Democrat of West Virginia.) And Obama was not the engine behind the tripling of our border patrol spending since 2001, which was bound to lead to more apprehensions at the border. Still, he must somehow live with the legal requirements imposed on the executive, even if many, including I, believe he has been far too accommodating.

Beyond his quixotic pursuit of comity with a Republican Congressional delegation that wishes him nothing but harm, Obama’s deference to Congress seems to have roots in a strict constitutionalist interpretation of the sharing of power among the branches of government. The result is an odd combination of reluctance to impose his own policy preferences on the one hand, and, on the other, a propensity to apply laws he does not really like with surprising vigor. I do not mean to say that he never acts on his convictions, but rather that he does so very ponderously. For instance, he did take a stand against the homophobic Defense of Marriage Act, but it took him three years before announcing that the Department of Justice would no longer defend the law in court. Similarly, in December 2010 he was genuinely infuriated by the Senate’s inability to pass the Dream Act over a Republican filibuster, and eventually he countered with DACA, two years later. At the same time, he refuses to launch a frontal challenge to the immigration code and its deportation mandate, or to Congress’ desire to seal the southern border to the point of militarization.

This pattern is repeated elsewhere than in immigration matters. One could argue that Obama’s assiduous adherence to the USA Patriot Act derives from a willingness to deflect accusations of fecklessness in matters of national security or from the oft-invoked proclivity on the part of the White House, regardless of its occupant, to jealously preserve all components of power previously granted. Point taken. Still, I cannot believe that Obama personally applauds the extremes to which the National Security Agency (NSA) has gone to gather intelligence through massive, intrusive data sweeps. Rather, the letter of the regrettable Patriot Act if not its spirit can be interpreted to allow the NSA boundless discretion over its activities, and Obama’s constitutionalist response has been to defend many of the prerogatives the NSA has claimed for itself until Congress amends the law. (Don’t hold your breath.)

On the economic front, Obama has flatly refused to defy a clearly rogue Congress and lift the debt ceiling on his own initiative when threatened with default. He had grounds to do so: the national debt is incurred in order to pay for appropriations made by Congress itself, not for new spending decisions made unilaterally by the president. Lifting the debt ceiling without Congressional approval could truthfully have been characterized as compliance with legislation, passed by Congress and signed into law, establishing programs and authorizing spending on them. Rather than call Congress’ bluff, Obama essentially took it on the chin, at huge cost not only to his presidency, but to the country’s prospects for economic recovery as well. This parliamentarian deference to the separation of powers prevailed over legally justifiable policy. (Personally, I would have liked to see Congress sue to compel the country to default on the debt, just for the entertainment value.) Only later, after the public rebelled against the government shutdown, could Obama stare down Congress’ debt ceiling shenanigans. That, however, was not an assertion of executive authority, but rather a political stance, albeit a welcome one.

There is a paradox at work here: The various laws underpinning each of my examples, Patriot Act-induced NSA conduct, unilateral Congressional authority over the debt ceiling and immigration are constitutionally suspect. At the same time Obama bends over backward to defer to Congress out of hyper-scrupulous regard for the coequality of the branches of government. Constitutional compliance has become a one-way street. Think about it. The NSA data sweeps strain compliance with the 4th Amendment’s prohibition against unreasonable searches and seizures, to say the least. Section 4 of the 14th Amendment commands, unequivocally, that the public debt be honored. As for immigration law, it has been largely exempted from Constitutional scrutiny through fealty to the “plenary powers” doctrine, the foundation of which is nowhere to be found in the Constitution. It does not take a Constitutional expert to recognize skirting in our immigration code and practices of the 5th (proscription of double jeopardy), 6th (right to counsel), 8th (prohibition of excessive bail, and cruel and unusual punishment) and 14th (equal protection) Amendments.

Herein lies the tension that President Obama can and should resolve. Yes, he must follow the law and respect the wishes of Congress. However, he is also charged with instituting enforcement practices that comply with the Constitution, and, in the absence of infinite resources, with setting priorities for the administration of the law. In the view of immigration reform advocates, Obama has emphasized separation of powers orthodoxy over legally achievable relief for immigrants caught in our intractable and often unreasonable enforcement machinery. I tend to agree.

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