Pepsi – and ICE

By Andrew R. Arthur on April 6, 2017

A Pepsi commercial featuring Kendall Jenner is currently trending on Twitter and Facebook. (Pepsi pulled the ad yesterday after an outcry.) Jenner's encounter with a police officer at the climax of the ad reminded me of the arguments of critics in the ongoing debate on immigration enforcement.

The commercial begins with Jenner (a member of the extended Kardashian family) modeling for a photo shoot as a protest march assembles in the street outside. She joins the marchers, who are confronted by stone-faced police officers, some in riot gear. The assembled crowd flashes peace signs at the police, who stand stoically by, all business.

Ms. Jenner moves through the crowd, grabbing a Pepsi from an ice bucket and walking toward the police. She walks up to an officer in short sleeves who resembles a younger Jake Gyllenhaal, the same age as the protestors. She hands the cop the Pepsi; he opens the can and drinks from it. The crowd cheers this action, and the young officer nods approvingly at his fellow police.

There are many aspects of this commercial to criticize and mock, but the most basic one is, "What is the product?" My father was a salesman and once told me that "You can't sell two products at the same time." I trust that the ad team behind this sell was at least as accomplished as my father, and knew this, so I will take the ad at face value: Whatever the goals of the protest were, when the police officer takes the Pepsi, and approves of it, he is won over by the crowd (and Pepsi), and so should we.

The problem is that this is contrary to everything that we believe about the role of the police generally, and certainly the role of police at a protest. Other people make the laws, other people set the rules, and the police are there to enforce the rules, fairly and dispassionately. In this commercial, the cop taking the Pepsi is not the issue — rather, his signaling of appreciation of the product places him on the side of the protestors. That is not his role.

Which brings me to ICE, the Immigration and Customs Enforcement arm of the Department of Homeland Security. Last Tuesday, I testified before the House Judiciary Committee's Subcommittee on Immigration and Border Security on "Restoring Enforcement of our Nation's Immigration Laws". Many of the statements directed to the panel (which also included the Center's Jessica Vaughan) actually had to do with non-enforcement of our immigration laws, and questioned whether ICE agents should arrest non-criminal aliens (particularly those with families), or whether they should do so in given contexts. Implicit in those statements was the sentiment that ICE officers should not arrest given individuals, even if they are otherwise removable.

Those statements reflected a sentiment that has been expressed by others: that ICE officers should focus solely on aliens who have committed criminal offenses in the United States, and not on aliens who are only removable because they entered, or remained, illegally. Implicit in that sentiment is the idea that ICE officers have acted improperly in arresting such individuals, thereby encouraging those agents not to arrest aliens whose only crime is illegal entry. This sentiment is most succinctly stated by the Baltimore City councilman who compared aliens who had been arrested to Holocaust survivors.

Immigration enforcement at the street level is, generally, carried out by ICE Enforcement and Removal Operations (ERO) officers. ERO's mission is: "To identify, arrest, and remove aliens who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts. Enforcement and Removal Operations (ERO) upholds America's immigration laws at, within and beyond our borders through efficient enforcement and removal operations." These officers carry weapons and wear protective gear because the job that they do is dangerous, and because they are often placed into situations that they cannot control. It is morally wrong to criticize them for doing a perilous job that they are hired by the people's representatives to do.

More importantly, however, it is dangerous to our system of law to ask those officers to take sides in an ongoing debate by not enforcing the laws. As with the police officer in the video who nods his approval of the Pepsi (and implicitly the protestors), we don't want ICE officers to take sides in an ongoing political debate by not enforcing the laws. When they do, they are no longer neutral actors applying the law that Congress has written, but they are usurping Congress's authority and become the law themselves. As the Supreme Court held in Galvan v. Press, 347 U.S. 522, 531 (1954): "Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government." (Emphasis added.)

This is not to say that an ERO officer does not or should not have any discretion in whether to arrest, detain, or charge a given alien who is removable from the United States. Humanitarian, law-enforcement, and resource concerns are real, and officers must be allowed to use such discretion on a case-by-case basis. Any use of such discretion risks abuse, however. When that discretion prevents enforcement of the law as Congress has commanded to a class of removable aliens (as immigration-enforcement critics demand), ERO officers become like the cop in the Pepsi commercial — no longer enforcers of the law, but the law itself.

Finally, if, as critics contend, the immigration laws are unfair, unjust, or unworkable, they should support such enforcement all the more. As President Ulysses Grant stated in his first inaugural address: "I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike — those opposed as well as those who favor them. I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."