CNN reported on February 12, 2019, that the top Democrat and the top Republican on the House and Senate appropriations committees, respectively, had reached "an agreement in principle to avert a partial government shutdown at the end of this week." To overuse a trite phrase, the Devil is in the details, and normally when appropriators say they have reached "an agreement in principle" on yet undrafted legislation, my advice (born of years of Capitol Hill experience) is to grab your wallet. Unfortunately, the stakes are much higher this time, and the omens are not good.
Of course, the fundamental issue behind all of this (government shutdowns, partisan statements, conference committees, etc.) is the president's request for crucially needed infrastructure along the border. And by infrastructure, I mean fences, walls, barriers, drag roads, cameras, sensors, and any number of other tools that the 18,600 Border Patrol agents who man the 1,954-mile southern border (often if not usually working in 50-hour shifts) require to do their jobs.
Respectfully, this discussion is like asking whether we should give our troops bullets, body armor, and helmets, but there you have it. Were Donald Trump to be the one asking for those bullets, body armor, and helmets, there would be a Greek chorus of opponents who would argue that our troops are safer, our country stronger, and our principles better served by depriving our soldiers, sailors, and Marines of such equipment. And most of those choristers would not only never have been to a war zone, but they never would have actually seen a bullet, helmet, or piece of body armor. You go sit in the desert in the middle of the night facing a vast expanse of land, the other side of which is a section of a foreign country that is poorly regulated by its authorities, and de facto controlled by some of the most violent criminal organizations of the face of the earth, and let's talk about your feelings afterwards.
Back to those four key legislators, and more importantly their staffers who will actually have to write the legislation, however. Undoubtedly, this "agreement in principle" would provide the president with some portion of the $5.7 billion that he is seeking for infrastructure (an alleged leaked proposal is below). Again, bearing the scars of many a conference committee, I am a wild-eyed realist and an incrementalist. As a staffer, you rarely throw a touchdown pass when hammering out a compromise with a group of true believers (usually much more dogmatic than their bosses) whose jobs, Facebook reputations, and careers are on the line (and who want to maintain their premium offices and parking spaces if they are in the majority, or alternatively grab those perks if they are in the minority), so you shoot for a 20-yard gain, but will accept a first down. Unless the Republicans have completely dropped the ball, some portion of that infrastructure funding (measured in dollars and miles, and potentially in the types of structures that are morally and aesthetically acceptable) will be included.
In return, however, we need to be cautious that the Republicans have not made a deal with the aforementioned Devil. Democrats were seeking in the course of these negotiations a limitation in what the Los Angeles Times described as "beds for detained migrants". As that article stated:
Democrats say limiting the number of detention beds will force the Trump administration to stay within its budget and to stop detaining and deporting undocumented migrants who have broken no other laws.
By way of background, there are two sorts of committees on Capitol Hill. The first are "authorizing committees", which set the rules for how the departments and agencies over which they have jurisdiction do their jobs. In this particular case, the House Judiciary and Homeland Security committees and the Senate Judiciary Committee are the authorizing committees that write the immigration laws of the United States and determine how they will be implemented. They hold hearings, go on fact-finding trips, do exhaustive research, and hold endless meetings to assess how the immigration laws should be drafted in the interests of the people of the United States. In an ideal world, they are the experts to whom deference should be paid.
The output of this effort in the immigration arena is the "Immigration and Nationality Act" (INA), which is codified in Title 8 of the United States Code.
The House and Senate appropriations committees, on the other hand, have the responsibility for protecting the public fisc in funding the activities that are authorized by the authorizing committees. In an ideal world, the government would live within its means in the same way in which your family must live within its means. That rarely happens, so some level of deficit spending is deemed acceptable to those appropriating committees to carry out crucial government tasks. Sometimes in the course of these duties, they engage in their own fact-finding about the roles and the duties of the agencies and the departments that they fund, but never to the extent that their authorizing brethren do.
Which brings us back to these four key legislators and this "agreement in principle". As CNN reports:
The full details of the tentative agreement struck on Monday evening have yet to be publicly released. But according to a Democratic source, the agreement in principle at this point would include $1.375 billion for physical barriers and a level of 40,520 for overall ICE beds, short of the 52,000 the administration requested and matching current funding levels.
The Daily Beast reported in November 2018 that, in fact, U.S. Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) agency responsible for detention, was actually detaining 44,000 aliens. Given the fact that the Transactional Records Access Clearinghouse (TRAC) reports that through November 2018, there were 809,041 aliens in removal proceedings before the immigration courts, and given the fact that under the INA, aliens who are making credible fear claims must be detained, only a fraction (no more than 5.4 percent) of the aliens who are going through the removal process are actually in detention.
Going back to the reasons why the Democrats want to limit immigration detention, the best source is the House Democratic Chairwoman of the Appropriation Committee's Subcommittee on Homeland Security, Lucille Roybal-Allard (D-Calif.). In a press release dated February 10, she stated:
"For far too long, the Trump administration has been tearing communities apart with its cruel immigration policies. A cap on ICE detention beds will force the Trump administration to prioritize deportation for criminals and people who pose real security threats, not law-abiding immigrants who are contributing to our country."
To enhance national security and encourage more efficient immigration enforcement, Democrats have proposed a cap on the number of ICE detention beds associated with interior enforcement. This cap will force the Trump administration to prioritize arresting and deporting serious criminals, not law-abiding immigrants.
Right now, the Trump administration is pursuing an out-of-control deportation policy focused on removing immigrants with no criminal records, many of whom have deep roots in their communities. This approach is cruel and wrong.
A cap on detention beds associated with interior enforcement will rein in the Trump administration's deportation agenda, prevent the Trump administration from shifting more funding to detention beds than Congress has agreed to, and restore immigration enforcement to the levels that were in place at the end of the Obama administration.
It is difficult to know where to begin analyzing this statement.
First, the vast majority of the aliens the president, through ICE, has removed were convicted of or charged with crimes. Specifically, according to the "Fiscal Year 2018 ICE Enforcement and Removal Operations Report", in FY 2018, the agency removed 256,085 aliens. Of that number, 145,262 were convicted criminals, 88,027 had pending criminal charges, and a mere 22,796 were solely removable on immigration grounds. That means that 56 percent of the aliens removed in the last fiscal year had criminal convictions, and 91 percent had either criminal convictions or charges. Only 8.9 percent of all of the aliens that ICE removed last year did not have criminal records. Respectfully, that is not "an out-of-control deportation policy focused on removing immigrants with no criminal records".
Nor is it out of line with the record during President Obama's last year in office. In FY 2016, ICE removed 240,255 aliens, of whom 138,669 (57 percent) had criminal convictions, and 89,423 (37 percent) pending criminal charges. Removals of aliens without criminal convictions or charges totaled 12,163 (5 percent of removals).
One could argue that this means that the Trump administration is deporting 1.78 times the number of non-criminal aliens in FY 2018 that the Obama administration did in FY 2016 (by percentage), or 1.87 times the number of non-criminal aliens (in real numbers), but two key facts need to be noted in this analysis.
The first is that through the Obama administration's November 2014 "prioritization" policies, it essentially ignored the mandates of the authorizing committees regarding who should be removed. The second is, assuming that the undocumented population of the United States is 11.3 million, in FY 2018, the Trump administration removed a mere 2.26623 percent of that population. Assuming, as many who are in favor of more liberal immigration policies have argued, that illegal immigrants are less likely to commit crimes than the native-born population of the United States, and that ICE is able to capture all of those criminal aliens, just more than 0.2 percent of non-criminal illegal aliens present in the United States were removed by ICE last year. The first of these assumptions is subject to significant dispute, and the second is plainly wrong, but open-immigration advocates should not be allowed to have it both ways. The point is illustrative, however, not dispositive. Trump is not the "cruel" deporter he is portrayed as, no matter how unpopular that point is with both sides of the argument.
Simply put, if Congress (through its authorizing committees) wants to tell ICE that the immigration laws the United States do not apply to removable aliens who have not committed crimes in the interior of the country, it is free to do so. Significantly, however, it has not, even during periods of time when Democrats had total control over the legislative process, probably because it knows how unpopular amnesties really are. What Chairwoman Roybal-Allard is proposing is the functional equivalent of ordering a meal without intending to fully pay for it because, for example, you ordered chicken, but really want steak.
Frankly, this is the "Abolish ICE" movement seeking the ends that it knows are not popular with the American people through other means: call it "Starve ICE" until the agency is effectively ineffective. The party of Jefferson, Jackson, FDR, and JFK is becoming the party of Alexandria Ocasio-Cortez before our very eyes.