Rishi Oza
By Rishi P. Oza
The stunning election of Donald Trump to return to the presidency marks an inflection point not only in US politics, but also to the future of America’s immigration system. Love him or hate him, voters understood where Trump always stood on the immigration issue, which helped to propel him back into the White House.
What is different for his second term compared to his first is this: He will control all three levers of government – the legislature, the executive and (presumably) the courts. This absolute power may be devilishly enticing but comes with a very clear price: as with all other issues facing the country, the Republican Party will now own the entirety of the issue outright and cannot paint Democrats as political obstructionists seeking to stymie progress on the issue. One way or the other, Republicans must now be able to deliver.
As an issue, immigration has always been a political minefield. Democrats have historically wanted to be seen as forgiving and inviting to migrants seeking US protection from broken foreign governments, crime and poverty. However, under President Biden, the system ran amok with migrants without any viable claim to asylum or protection simply arriving at the US southern border knowing that they would be permitted to enter the country. How such a situation would be considered a political victory remains unclear and voters punished Kamala Harris for what was roundly seen as political incompetence.
Conversely, Republicans have historically been the business-friendly party, and they have also painted themselves as the law-and-order party, although this position has mixed results. Trump’s first term did reveal an increase in overall number of individuals placed into removal proceedings, but by failing to significantly increase the number of administrative judges capable of handling an increasingly loaded docket, the system bogged down.
Trump’s plans for mass deportation will undoubtedly be a daunting legal and logistical challenge. Estimates range from 15 – 25 million individuals present in the United States in violation of law, which makes such a massive undertaking a logistical nightmare. Trump has provided little details thus far on how the government would execute such an undertaking. Will DHS be hiring thousands of federal agents to scour the nation’s streets? How will illegal immigrants be identified – public checkpoints in heavily ethnic communities will surely receive immediate legal challenges. How does Trump propose to pay for undoubted expansion of the federal labor force (particularly in light of Elon Musk and Vivek Ramaswamy’s Department of Government Efficiency looking to cut the federal workforce)?
If the government intends to detain those in the country unlawfully, where will these millions of individuals be housed while awaiting their hearings? While Trump would not be the first politician to back away from promises made on during election season, the fact that immigration plays such a central role in his overall policy agenda makes the execution of such a herculean task by the administrative state a challenge beyond modern day comparison.
That said, Trump’s second term should reflect some lessons learned from his first term. His selection of Tom Hermon as his border czar does reflect his desire for a no-nonsense approach to border policing. Similarly, the selection of Kristi Noem, the governor of South Dakota, puts an administrator (albeit a small state administrator) in charge of an estimated $100B+ budget and a sprawling, multifaceted organization. Trump has now tapped Pam Bondi (former FL Attorney General) to manage the DOJ’s large-scale bureaucracy. Of course, any nominee for cabinet must be approved by the Senate.
Overhauling the country’s immigration system will require shrewd efficiency and an intimate understanding of a given department’s organizational makeup. Bondi’s selection is similarly challenging – although she led the Attorney General’s office in Florida from 2011 – 2019, she also supported Trump’s unfounded claims of voter fraud in the 2020 election. She has been a Trump loyalist for almost a decade, which gives her cache with the President-elect, but given that the immigration courts are housed under the DOJ, she will need to be ready to enact wholesale organizational changes to effectively tackle the stunning immigration court backlog. Her track record as FL’s AG was mixed at-best, so it remains to be seen if she is up for the post of the nation’s top cop.
Furthermore, meaningful reform will require the involvement of both the House of Representatives and the Senate. Although bills will be able to pass the House on a simple majority vote, passage in the Senate will require 60 votes, meaning that Democrats should be able to extract some concessions from Trump if he wants to enact real reform. Will Trump be willing to provide a pathway to legalization for Dreamers for border wall funding? He was willing to negotiate with Nancy Pelosi when she was in charge of the House in 2017 and while their negotiations did not result in new legislation, his willingness to be transactional on the issue may provide some necessary daylight for progress.
While many a writer have seen their predictions about Trump end up on the trash heap, the only predictable outcome for the next four years is that nothing is scripted. Trump’s mastery of the media and his apparent mandate from the voting public does provide him some heft in seeking to address a problem that the entire American public sees as problematic. Whether he will continue to dip his toes in xenophobia and fear will help him little when he now owns the issue and is tasked with finding real solutions. His election victory does give him the right to crow about his success, but the public votes again in two short years and if he wants to maintain his grip on the America’s political imagination, he must be creative and pragmatic in findings solutions to the grievances that he has so successfully raised in the discourse.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: [email protected].
