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Immigration policy has long been a battlefield for ideological disputes. But what we’re witnessing during Trump’s second term isn’t just a debate over border security or visa policy. It’s an attempt to reconfigure the U.S. immigration system into a tool for authoritarian governance—an assault not only on due process, but on the foundational belief that laws must constrain power.
Joining The UnPopulist’s editor-in-chief, Shikha Dalmia, is immigration expert and senior fellow at the American Immigration Council, Dara Lind. Together, they explore how Trump’s second term has differed from his first in his weaponization of obscure legal tools and administrative procedures—many of them relics from the Cold War and even the John Adams era—to strip people of legal status, bypass the courts, and normalize practices once considered unthinkable.
Tune in for an informative but chilling discussion.
[After this episode was taped, news broke that the Department of Justice had arrested Milwaukee County Circuit Judge Hannah Dugan for obstructing its efforts to arrest an undocumented immigrant who was in her court for a hearing. ICE agents were apparently waiting outside the courtroom to nab the man as soon as his hearing concluded violating a long standing precedent that holds sensitive locations—courts, churches, hospitals and schools—offlimits to law enforcement, a focus of this conversation.]
A transcript of today’s podcast appears below. It has been edited for flow and clarity.
Shikha Dalmia: Welcome to Zooming In, Dara. Good to have you here.
Dara Lind: You know, I would say it’s good to be on, but like, everyone always kind of winces when I say that because it sounds a little bit ghoulish, you know? It’s like, it’s great to be in the middle of so many things that are happening, but...
Dalmia: But it’s just good to see you under any circumstances.
Jumping right in, you have been covering immigration for a few decades now. Your job possibly has never been harder. Before Trump came into office, he had promised “shock and awe” when it comes to immigration enforcement. So tell us how shocked and awed are you so far?
Lind: I don’t tend to think about things in terms of my emotional reactions to them because the fact of the matter is that as a white, native-born U.S. citizen, my emotions are kind of secondary. I’m not the person being targeted—my job is to communicate things and let other people figure out how they should feel about them. But I’ve definitely been surprised by some of the legal tools that they’ve been able to use, by the extent to which they’ve not just beefed-up immigration enforcement within the parts of the government that have traditionally done it, but also started to redirect whole lots of the federal government toward immigration enforcement. And I’ve been surprised by their absolute refusal to make any concessions whatsoever, even in cases where there does appears to be some political blowback, which is a very big difference from the first term. Then, when they were taking losses, both in courts and in the streets, they usually tried to pare it back somewhat so that something could survive. This time around, they don’t appear to be willing to concede any limits on their power.
Dalmia: So that actually raises the interesting question how Trump 2.0 is going to be different from Trump 1.0, right? It’s not like Trump’s first term, he didn’t come out swinging against immigration, as you say. He did his Muslim ban right off the bat. He started impounding defense funds to build his border wall, which we are not hearing about very much this term. He suspended DACA and DAPA immediately and then he got a little pushback from the courts and he created a class of DACA recipients who would not be deported and would be able to keep their protected status for a while. He then went on to his zero tolerance border policies, which led to the removal of children from migrant parents. All of that created a pretty big backlash. And, like you said, even though a lot of the damage was not completely undone, some of it was. This time, as you say, that seems to be not happening. But in terms of policies, how are you seeing their priorities as different this time and how are they going about it differently?
Lind: The tendency to move from a first 100 days framework to where I think a lot of the public discussion about presidents is now really about, like, the first week and the first wave of executive orders that they sign, which can be helpful in some regards in terms of just setting priorities and setting an agenda, but there’s a difference between an executive order that has the power to do something and an executive order that essentially could be a memo to other agencies to start a process. And that was a lot of what we saw under the first Trump administration. If you look at the executive orders that he signed in the first week, with the exception of the travel ban, which went into effect immediately and chaotically, you can see this, the seeds of things that would develop over the course of the term, like Zero Tolerance, like the Remain in Mexico program, which doesn’t come into play until 2019. There are a lot of things like that that are mentioned in these executive orders as “you should explore this possibility.” And so that lays the groundwork for stuff that actually happens down the road, but it doesn’t change stuff the first week.
“Donald Trump in the 2016 presidential primary innovated, but not by being hard on immigration—like, his policy stances weren't all that different—but by talking about immigrants as people who weren't going to take your jobs, they were going to come kill you. And that has been a very persistent theme in Trump's own rhetoric and in the way in which his administration talks about immigrants.” — Dara Lind
Here, we had a similar wave of executive orders, but the actions that were subsequent to them started and even things that weren’t anticipated in them started much earlier. Within 48 hours of inauguration, they had published a federal register notice expanding their ability to deport people without giving them a hearing in immigration court first. Within their first week, they wrote a memo invoking a long unused provision to give local police the inherent authority to enforce immigration law if some agreements were signed by arguing that there was a “mass influx” of immigrants into the United States. So they clearly came in with a backlog of things they had already drafted, things they’d already figured out. They understand the levers of power and how the bureaucracies work a lot better. And they’ve also had more opportunities, but also been a lot more aggressive in stripping legal protections from people who have some form of legal protection that is to some extent discretionary. And that’s everything from, student visas where they’re going through and just really broadly appearing to revoke student visas for anyone who’s had any kind of contact with the criminal justice system to their actions to claw back Temporary Protected Status for people to these mass notices that people who were paroled into the U.S. have had their parole revoked.
All of those do things to make more people removable, but it also reflects the extent to which they acknowledge that they’re not putting all of their effort into deportation and detention. They are putting a lot of effort into it. But in order for them to scale up the kind of transformational enforcement they’re talking about, they are going to have to get people to “self-deport.” And that is where stripping them of existing legal protections and doing a few really high profile things comes in.
Dalmia: So what’s been striking, as you pointed out, this time, is that they are not doing mass deportations right off the bat. Those may come down the line. What they have really focused on is changing the administrative rules. How much of this, in your view, is just pure lawlessness versus how much of it do you think is actually nominally following the law but revising it in an unprecedented way by shattering all previous norms of the way these laws have been understood and how they are supposed to be enforced?
Lind: There’s a lot of immigration law that is a product of the time in which it was written. To the extent that you would even consider the Alien Enemies Act to be immigration law, that’s the one surviving artifact of the John Adams administration, essentially, which in all other regards was like almost immediately understood to have been an overreach on the part of the federal government.
Dalmia: And which have not been used since World War II. And we should just explain to our listeners that the Alien Enemies Act is the act that Trump has invoked, for instance, to deport people to El Salvador …
Lind: … people who have not had any sort of hearing. The argument is that because the Trump administration alleges that they are members of a Venezuelan gang and claims that the U.S. is under invasion by said Venezuelan gang, that they then can bypass all of immigration law, any of the due process protections that have been enshrined in U.S. law over the last 200 years and just summarily remove these people. But you have everything from to the provision that, say, the State Department has used to revoke student visas and to, in at least one attempt, strip somebody who has a green card of permanent residency by accusing them of being harmful to the foreign policy of the United States by being vocally pro-Palestine in their in-campus activism. That provision is very much a legacy of the Cold War roots of lot of modern immigration law. And there are a lot of provisions that essentially allow the executive branch to do a little bit of ideological discrimination and do things that would be considered an infringement on freedom of speech or freedom of association in other contexts.
But it was quietly accepted during the Cold War that it was okay to deny communists entry into the country. And since then nobody’s really gone back and said, “Well, now that this circumstance has changed, maybe we should pare it back.” So there is a lot of inherent authority in immigration law, and usually that’s just paired with a certain degree of prudence. But when you have an administration that doesn’t see the difference between something it’s allowed to do and something that it wants to do and something that it thinks would be a good idea to do, you have this situation where they’re using a whole lot of tools that have either gone unused for ages or have never been used like this, but that are inherent in the really broad and largely unaccountable power that has been given to the executive branch on this issue.
Dalmia: So what I’m hearing you say is that in some ways the lines of what is lawful and what is lawless is sort of blurred because what’s lawful hasn’t been governed by the way the law has been written. It’s been governed by the way the law has been used. And now if the president is going to use the laws in a way that is completely unorthodox, how do you classify that? Do you classify that as lawful or unlawful? So the whole boundary between what’s lawful and unlawful, it seems to me, has completely blurred.
“I've been surprised by their absolute refusal to make any concessions whatsoever, even in cases where there does appears to be some political blowback, which is a very big difference from the first term. Then, when they were taking losses, both in courts and in the streets, they usually tried to pare it back somewhat so that something could survive. This time around, they don't appear to be willing to concede any limits on their power.” — Dara Lind
Moving on from these very high-profile cases that unless you’re living under a mushroom, you would have heard about: the deportation of Venezuelans to a hardcore prison in El Salvador, from which very few people ever come out, according to the Trump administration’s own admission. The deporting of Abrego Garcia, they have admitted was done in error. That seems to me a clearly lawless action, under any definition. And yet they are refusing to bring him back to the country and are likely in contempt of the court. Going after Mahmoud Khalil, the Palestinian activist in Columbia University in revoking his green card and throwing him into detention without any kind of a due process. Most people have at this point some awareness of these cases.
What they don’t have an awareness of is some of the more hidden administrative techniques that they are using to go after, especially the undocumented population, but even beyond that. So run us through some of those you’d mentioned. TPS, temporary protected status—what is that? They are going to have a registration requirement now for the undocumented population. They are going to have information sharing between the Department of Homeland Security and IRS. Run us through some of those abuses of powers which are being done through these administrative means that people are not familiar with.
Lind: I think as a broad statement, I don’t have an enormous problem with the attention being paid to individual cases, especially because those are individual cases that are in general reflecting important policies that the administration is trying to push forward or at least that are so clearly anomalous, like the Abrego Garcia case, where, as you mentioned, the attorney who acknowledged that he was removed in error, which is to say he was removed in violation of an order from an immigration judge saying he should not be deported to El Salvador, the attorney who admitted that has since been fired from the Department of Justice and the administration has subsequently refused to admit that they did violate the law in removing him. But with that exception, most of the stuff that’s gotten attention has been reflective of these kind of bigger trends or efforts that are being made that may not be seen in all cases.
So I have to say I’ve been pretty surprised by the amount of attention that’s been paid to some of this stuff. And I do think that it’s helped people adjust their baseline expectation of the kind of person who these things are happening to. There was so much right after the election with people immediately trying to retroactively construe mass deportation as just like, “they’re only going after people with criminal records.” At this point, it’s very clear that’s not true. But the things that they’ve done to render people removable is another big issue.
“When we talk about, ‘if they can do it to anybody, they can do it to you,’ it's not saying you're next. And it's definitely not saying, ‘if you say anything against the administration, you'll be treated as just as badly as somebody who they're trying to deport.’ What it's saying is either this is something that you are allowed to be proud of as an American or it isn't.” — Dara Lind
In the first Trump administration, they made an effort to sunset Temporary Protected Status when it was time for the executive to review whether a country should continue to receive that status or not. Under this administration, they’ve said, “we’re undoing what the Biden administration did in its last weeks” and actually saying that people who were told they had 18 months to stay in the country actually have to get out by April or actually have to get out by September. It’s been more aggressive in that regard. The flip side of that, of course, is that most of these policy changes, like the stuff they’re announcing can be challenged in court. And there is a lot of litigation that, for example, has put their efforts to strip TPS from some Venezuelans starting this month on hold. That has put the Trump administration’s effort to just categorically cancel parole for people who came in under a certain Biden administration program that allowed 30,000 people from four countries to come in each month on hold. The most similar thing to Trump’s first term has been that the courts are operating from the assumption that the administration may not be doing all of this above board. And so some of this stuff is being put on hold.
The registration requirement, I don’t think has received as much attention as other things, partly because we don’t really know what it looks like yet. This is another of those things that has been allowed to be a dead letter in U.S. law. It was created in World War II, and at that time it basically required people to go to their post office and register if they were going to be in the U.S. for more than 30 days. And the Trump administration is now reanimating it and saying, “if you entered without inspection and we don’t have any records for you and you don’t submit your contact information to our portal, then we can prosecute you criminally under this law that no one’s used in decades.” We don’t know how often people are actually gonna be prosecuted under it. And so where this falls on the spectrum of like Kristi Noem recording ads telling people to deport themselves— that’s purely a scare tactic that doesn’t have any teeth behind it—versus something where we are going to see large numbers of prosecutions, that’s very much to be determined.
And that gets into this broader use of the Department of Justice through U.S. attorney’s offices, which have been very aggressively told to pivot to immigration offenses in particular—instead of more complicated, arguably, more serious crimes. To the use of agents from federal law enforcement agencies to be detailed to immigration enforcement. To this IRS info-sharing agreement, which we still don’t understand the contours of yet, but in the way it’s described, it appears to be so obviously contrary to federal law that its odds of getting held up in court don’t seem terribly slim. But the Department of Homeland Security and in particular the immigration enforcement agencies have been enormous since they were created after 9-11, actually the biggest law enforcement effort in the federal government. And to add all of these other law enforcement agencies to it has the potential to ultimately expand enforcement capacity to a level that we haven’t seen.
But it hasn’t immediately provided the kind of force multiplier that headlines about tens of thousands of ATF agents would indicate.
Dalmia: And at the same time that they are enlisting non-immigration enforcement agencies into the immigration enforcement function, Republicans in Congress are talking about vastly expanding the budget for ICE, the Immigration and Custom Enforcement Agency, from something like $9 billion dollars annually right now to $20 billion and most of it is going to go to their capacity to build up mass deportations and detention centers. And at the same time enlist private prison companies and private corporations to aid with these efforts. One of the programs that the Trump administration takes inspiration from is Operation Wet Back. The Eisenhower program. But that program actually only deported about a million immigrants. They have a target of 10 million immigrants. So how bad could it get?
Lind: The fight over funding really is the thing that is going to determine whether mass deportation can happen on anything like the scale that they would like it to. Right now, they’re operating at capacity in a lot of ways, specifically with regard to detention. And part of this is, again, this kind of uncompromising attitude that the administration is taking. They have demanded that detention beds be full on a daily basis, which means you actually have less flexibility to arrest more people and put them into detention because you’re refusing to consider release for a whole lot of people. So the only way they can really scale that up is to expand detention—and that gets very expensive. If they aren’t able to meaningfully expand the ICE budget, we’re going to see more of what we saw during the first month, which was some efforts to hype everything they were doing, a lot of favorable media coverage from conservative influencers, followed by some scattered reports that the people they were arresting they had to release because they didn’t have the capacity to detain them or that they were arresting people who like already had immigration proceedings and so they couldn’t do anything with them, followed by kind of quietly stopping reporting anything. If you actually looked at the numbers, they would look comparable to enforcement under any other president.
If they are able to expand detention capacity, this is where some of the other changes, for example, expanding the use of removal without hearings, can really have an impact. Because if you can deport somebody without a hearing, but you still have to detain them for months, while making the final arrangements, that’s still very expensive. But if you have the capacity to detain them and you can deport them quickly and you have enough in the way of ICE flights, if you’ve expanded the later stages of the process, then we can really see the erosion of required process steps really starting to make an impact. But when I say they’re being uncompromising, I mean that they are often taking the more expensive option because it looks tougher. Their use of military flights, their use of Guantanamo Bay, they’re spending money that could be, if they were spending it in other ways, be going to detaining and deporting more people. But they’re choosing the high visibility stuff, which does ultimately constrain their capacity.
Dalmia: And the point of that is what? To just spread terror and fear in the immigrant population?
Lind: I think it’s a bunch of things. I think it’s that the president really likes optics. He really likes things he can see on television and there’s also a certain extent of playing to the base. That they have really determined that we’re going after these guys who we all agree are enemies is something that their people really want to hear. And it’s not clear how much it’s resonating with even the base beyond like the online trolls, but there is a lot more attention to people who are very online in this version of the administration.
But absolutely the impact on immigrants is itself very real. And, frankly, I think that there is an effort to make people who are opposed to the Trump administration feel a little afraid too. Donald Trump loves talking about this idea that he would send U.S. citizens to El Salvador. It’s the rare thing where even Donald Trump acknowledges that the law may not allow him to do it. That makes it very different from a lot of the other things that he’s trying to do. And so I personally look at that and go, “if even Trump is saying he may not be able to do it, I don’t know how serious it is.” But he loves talking about it because he knows that every time he talks about it, people freak out. And that means that people are paying attention to Trump.
Dalmia: Right. On the other hand, just to go back to your original point, which is that if they do away with all kinds of due process, if they do away with hearings, even though it might be more expensive to hire military planes to do flights to El Salvador, you could do it very quickly, right? The only limiting factor over there, I would think, is just El Salvador’s capacity to take in these prisoners. Now, you may not be able to deport 10 million people that way, but you could deport quite a few, right? How worried should we be about this?
Lind: It’s important to remember that other countries have their own agendas and have to a certain extent their own agency. Even Bukele, who was really enjoying being buddy-buddy with Donald Trump on this one, when they tried to send planes to El Salvador after invoking the Alien Enemies Act, those planes came back with a handful of people on them apiece because the Bukele administration said, “We have no interest in taking women and we have no interest in taking non-Salvadoran Central Americans. And, so, I’m sorry, we’re not going to use the money that you’re paying us to house these particular people.” Because Bukele wants to be able to use CECOT as propaganda, he wants to be very visible with it. It’s easier to make even like a skinny makeup artist look scary if you’ve shaved his head than it is to make it seem like women are gang members (or whatever the other kind of concerns are with his own relationship with other countries in the region).
So that is, I think, a very meaningful constraint because not only do you have to do the kind of person-by-person arranging of travel documents, but you have to adhere to what other countries are willing to accept, which even with suddenly our strongest ally in the hemisphere, is not limitless.
Dalmia: Which is why I think the strategy of just scaring the bejesus out of the immigrant population is going to actually be key to achieving some of their goals for diminishing the undocumented or even the documented population from the country, right? So you do this kind of very draconian, very harsh action. You throw an Abrego Garcia who’s innocent into prison and then refuse to bring him back.
Right now, people from Mexico and other countries who are over here thinking, okay, it’s one thing to stay in the United States and hover underground under the radar. And then if they catch you, they deport you back to Mexico or back to your own country. We’ll take that consequence, right? But till then we are just going to keep our heads down and go about our daily business. But if they are going to start deporting you to a maximum security prison in another country from which you won’t come back, if they do two dozen flights, that might induce a lot of terror in the undocumented population and may in fact get it to self-deport, right?
Lind: It’s really hard to gauge just how obviously everyone’s going to weigh these equities differently. People who are most likely to have absolutely no legal protections in the United States have been here for ages and ages. And so have community roots, have often U.S. citizen children, have really strong equities that are going to make the cost of leaving a lot higher for them than they would be for somebody who came in last year.
But the person who came in last year is likely to already be in immigration proceedings. So they are pursuing some kind of path to legal status. And if they think they have a shot at getting it, “do I give this up?” When my colleagues modeled out what it would cost to actually deport all 11 million people, they worked off assumptions that about 10% of those people would self-deport. If you were at the point of deporting a million people a year, would still take 10 years. But, over time, people would read the writing on the wall, but only 1 in 10. If you’re going to get much higher than that, you’re going to have to do a whole lot more, not just in propaganda, but in the policy agenda of attrition through enforcement.
“One of the biggest misunderstanding that people have about the system is that there's this really clear line between being legal and not. Where in fact what there are, are various levels of protection and various levels of contact that you can have with the U.S. government. … So the upshot of this is that there have been millions of people, as many as half of the people who we think of as unauthorized are in regular contact with the government.” — Dara Lind
Old-school immigration hawks have always maintained that if you don’t have nationwide employment verification, you’re never going to get people to self-deport. But if you do that, you can actually get pretty substantial self-deportation because it would be impossible for people to work. Now, that assumes a bunch of things about how effective that policy would be. But that’s something you don’t even hear on the radar because this administration is so much more invested in things that make it look tough than it is in things that might upset business and that aren’t going to create good b-roll on television.
Dalmia: I’ve been extremely struck by the fact that they have announced no repercussions against employers who are hiring undocumented immigrants. If I recall correctly, in the first Trump administration, actually, even as it was making it extremely hard for H-1Bs to get their renewals right, and get new H-1Bs—new H-1Bs almost became impossible. And if you were renewing your H-1B, which I should clarify is the visa that high-skilled immigrants use to work in this country temporarily, it can be a pathway to green cards and eventually citizenship, but it’s a work visa. And Steve Miller, in a targeted fashion, increased the reporting requirements, the paperwork that was required to renew this visa so that you were almost applying for it afresh.
But the one area actually where they didn’t come down as harshly was on agricultural visas, which mainly go to red states, which are agricultural states. So the H-2A visas were actually expanded in the first Trump administration. Weirdly enough, that’s where the undocumented population is. But what I’ve been struck by is the fact that they have had no punitive action proposed towards employers. That’s one thing that makes the Trump administration’s program different from what Arizona did. Arizona passed LAWA, which was essentially an E-verify program against employers. Arizona, even before its “your papers first legislation,” had implemented what were at that time called business death penalty laws, so that if a business that is caught employing undocumented immigrants more than twice, their licenses were revoked. And the Trump administration is actually doing none of that. It’s not going after businesses. So what’s that about?
Lind: Yeah, I mean, when I say that this is a shift in the agenda from old-school immigration hawks, there really has been a difference in the way the whole party talks about immigration that reflects different fears that they’re willing to give voice to. Not necessarily different fears that exist, but what politicians are willing to express as legitimate concerns on the part of the American people.
Before Donald Trump came down the escalator at Trump Tower in 2015, the concerns were about American interest in the rule of law and about jobs. If you’re saying that immigrants are taking jobs that belong to U.S. citizens, then of course you would go after the employers who are choosing to employ these people over U.S. citizens. And of course, you would be doing what you can to make to give teeth to existing laws on the books saying people can’t work in the United States without work authorization. Donald Trump in the 2016 presidential primary innovated, but not by being hard on immigration, like his policy stances weren’t all that different, but by talking about immigrants as people who weren’t going to take your jobs, they were going to come kill you.
And that has been a very persistent theme in Trump’s own rhetoric and in the way in which his administration talks about immigrants. The problem isn’t the job market. JD Vance may say that mass deportation is a housing policy, but they’re not going around saying that the problem with immigration is housing. They’re saying the problem with immigration is the safety of you and your children. And that reflects itself in the policy agenda, which may not be ideally fine-tuned to actually reducing the unauthorized population, but is led by the desire to treat people as criminals and to depict them as criminals in the public eye.
Dalmia: Yeah, that’s a really good point. The point is not to defend American jobs and wages from immigrants. The point is to demagogue immigrants themselves and treat them as an out group, even as the country needs them and can’t really get rid of as many as Steve Miller may want to get rid of.
But one very interesting thing you’d said at one point was that one of the things that Steve Miller is doing is he is trying to create a population of deportables, right? Which essentially means yanking the status of those people who are legal right now and making them illegal, making them undocumented, and then putting them in this deportation pipeline even as they can’t deport as many as they want. So the net effect of all this is going to be an increase in the undocumented population at the end of Trump 2.0.
Lind: I personally have been saying for a while that one of the overarching themes of this conversation is the difference between what’s really unprecedented and how the immigration system has always been able to work and how the powers the federal government has always had aren’t necessarily understood by U.S. citizens because they don’t have to deal with the system themselves. And one of the biggest misunderstandings that people have about the system is that there’s this really clear line between being legal and not. Where in fact what there are, are various levels of protection and various levels of contact that you can have with the U.S. government, which may be lawful presence, but not lawful status. They may allow you to pursue a claim for legal status while also not counting toward future time earned if you’re going to be able to qualify for something down the road. They may allow you to be in the U.S. legally, but not to work. They may allow you to live to work for a period of time, but, say, if we decide to revoke this, you don’t have any right of appeal. So the upshot of this is that there have been millions of people, as many as half of the people who we think of as unauthorized are in regular contact with the government.
That requires us to think about the objection to these people in a different way, right? Yes, there’s rhetoric that these people are all sneaking in, that they’re trying to evade the system that they’re invading, but that doesn’t match the reality. What you instead have is—no one will articulate this out loud—an argument that because Congress authorized particular kinds of immigration and gave the executive branch powers to do enforcement beyond that, if you didn’t come in a way that the existing administration thinks is valid, then you are in fact illegal because you are violating the way that they think immigration law ought to work. During the campaign, JD Vance said that he didn’t care if people had legal status or not because he viewed the executive authority that had given them papers as illegitimate. That seems like it’s counterintuitive and it seems kind of dishonest, but it does reflect the fact that there is a lot of executive flexibility here. And frankly, a lot of past administrations of both parties have expanded the use of these discretionary statuses without necessarily thinking beyond the next 12 to 18 months, or trying to figure out what would happen if a future administration just said, actually, we’re not doing any of this.
Dalmia: Well, that seems like an inherent limitation of using executive authority or administrative means to advance immigrant-friendly policies. Congress is totally gridlocked and unable to act to implement a rational and humane system that a president cannot upend at will. Obama used executive authority and passed DACA to give Dreamers, minors brought here without proper papers, a reprieve from deportation and Trump comes along and tries to undo that. Yet both Obama and Trump policies are within a president’s prerogative. If Congress actually acted and gave Dreamers and other undocumented immigrants a path to permanent status, we could have a solution that would stick.
But Trump, it seems, has one purpose in mind: He doesn’t want legislation. He wants to use immigration as a culture war issue and continue to whip up the MAGA base against blue states that don’t go along with his cruel policies. The administration is rearing for a confrontation with sanctuary jurisdictions. Red states are passing laws to criminalize sanctuary municipalities within their boundaries. And the administration is threatening sanctuary states and sanctuary jurisdictions that do not cooperate with ICE raids and other enforcement with all kinds of sanctions. How is this going to play out this time?
Lind: So, I mean, I don’t know because this is where the difference between the response to Trump’s first term and his second term could really come into play. A lot of elected Democrats have been less interested in making a name for themselves as opponents of Donald Trump in the first few months of this term. A lot of other, broadly liberal affiliated institutions such as universities, such as big law firms have demonstrated that they would rather play ball than pick a fight. The federal government can withhold a lot of money from them, especially given this administration’s really aggressive attitude toward restricting funding. It doesn’t seem that implausible that if they really say, “we will never approve a disaster declaration for you again, unless you walk back your policies that restrict cooperation with ICE,” it seems plausible that some mayors will say, “look, I can’t, I am not powerful enough to pick this fight. Our city is not powerful enough to pick this fight.” What that actually does in terms of being able to bring their numbers up, less clear.
A report actually just came out from the Migration Policy Institute that ICE isn’t picking up everyone it sends requests to local law enforcement to pick up. This makes capacity questions become a lot more live than the authorizing policy. But it does have the effect of making welcoming itself seem like something that is going to get you in trouble.
“The fight over funding really is the thing that is going to determine whether mass deportation can happen on anything like the scale that they would like it to.” — Dara Lind
I’m actually a little less concerned about some of the intergovernmental sanctuary city, sanctuary state stuff than I am about efforts to go after service providers, to accuse people of criminal harboring provisions for being willing to help unauthorized immigrants. They have even been saber rattling about using human trafficking laws, which maybe I shouldn’t believe it until I see it, but the civil society edge here is really, really strong. If, in a world where we’re talking about stripping the tax exemption of organizations that the administration doesn’t agree with, and where the exact same people who would be needed to do a whole lot of pro bono representation of immigrants in court are the exact same law firms that are currently not picking fights, it’s harder to imagine that there’s as much supportive tissue for people who are under threat as there would have been eight, six, seven years ago.
Dalmia: That’s a sobering thought. Even in Trump 1.0 they really did shatter a lot of norms of not going after civil society institutions that were helping immigrants. So, for instance, there is a long-standing norm in every country, even non-democratic countries, that religious establishments, hospitals, courthouses are off-limit to law enforcement, not just immigration law enforcement, but any law enforcement, just because the mission of these organizations is to tend to anybody regardless of politics. So that had allowed actually the churches during the Reagan era, if you remember, to become sanctuary spaces for immigrants who were fleeing right-wing governments in El Salvador and Guatemala, which the Reagan administration was friendly to. And the Reagan administration obeyed those limits.
Last time around, ICE officials waiting outside hospitals to pick up undocumented immigrants after their appointments. There was this very famous case in Texas where a child of two undocumented parents who was being transported for a very serious condition to a Corpus Christi hospital, the ambulance was intercepted by ICE. The parents who were undocumented were allowed to accompany their child to the hospital only if they then promised to turn themselves in.
The one space where they actually didn’t encroach were churches. Actually, I visited them. I did a long story for Reason magazine at the time about churches in Arizona that had become sanctuary churches for certain kinds of immigrants who had solid asylum claims. And they had a whole criteria of who they were going to allow asylum (shelter) to and not.
But they were always worried that ICE officials could come. The only thing preventing ICE from coming in were norms. There was no law. There’s just internal administrative guidance and norms that were preventing ICE from hauling these people away. Even then, there were times when ICE would intercept undocumented immigrants who were living in the churches if they ever stepped out. So they were literally stalking these churches. Now do you think this administration is going to still observe some of these boundaries?
Lind: One of the things they did the first week Trump was in office was rescind the existing version of what’s called the sensitive locations memo, which was the internal guidance saying don’t engage in enforcement around hospitals, around churches, around schools. And that’s had a few effects. There have been some cases of ICE actually going into in schools. Some churches have stopped offering services in non-English languages because of concern for their members, but in a way that doesn’t actually allow their members to make the decision about whether it’s safe for them. And so when I talk about, civil society backing down and creating less support, less tissue, it’s really not just, can the administration go into your church or your school? … It’s also:
One: Is your church or school going to stand up to them?
Two: Even if they don’t come, because they can’t be everywhere at once, if they’re saying that they can do this, are these institutions doing enough to make people feel protected, to make people feel that they can leave their homes and go about their lives? Or are they allowing them to be dominated by the fear that ICE might show up at any time?
Dalmia: So this brings me, I guess, to my last question, which is, what should we do? It seems that from what I’m hearing you say, a lot of the insidiousness and the fear that this administration is spreading is causing a whole lot of resistance points which have worked in the past, to now be cowed or flattened, right? Do you expect new resistance points to emerge from somewhere? And what can we do given this reign of anti-immigrant terror that this administration is spreading? What’s to be done?
Lind: I think that while there are definitely some institutions that have been really noticeably stepping back, there are places, like a lot of schools, frankly, that are a lot better prepared to handle this than they were eight years ago. There’s now a much more sophisticated operation among kind of like right-wing vigilantes, some of them have gotten in trouble for it because there have been cases where a school has hosted a “know your rights” training and been attacked by the right. But that’s evidence that these things are happening that the institutions that were trying to be protective knew what to do initially. And I also think that frankly, a lot of people are engaging on this in a way that they only did with the first Trump administration and haven’t done with other presidents but are paying attention to this stuff.
In general, public opinion on immigration is thermostatic. Whichever way the government is going, the American public goes the other way and says, “oh no, you’re going too far.” And so we are seeing some evidence of that. The question is how much good it does, right? Because right now, I think that there’s a really good argument that the public attention and public reporting that has happened on the removals to El Salvador has allowed the courts to be very harsh with the administration and to demand a lot from them and not accept the rationale that because this has something to do with foreign policy that the courts have to defer on it. That’s not causing the administration to back down, though. And so if we’re creating cover for the courts, but that doesn’t get us any further than that. That raises bigger questions about what the kind of like next step of resistance would be.
But I think that in general, the important point is just not to let immigration become something that we’re willing to make an exception on. Right now, with so many other policies being radically shifted, it’s easy for immigration to get mentioned as, and “there’s this other set of things that they’re doing that are also very bad.” You can’t oversee a world where like in 2019, for example, there wasn’t attention to what the Trump administration was doing because it had kind of just been assumed that they weren’t keeping kids in cages anymore and so it wasn’t as abusive as some people thought. That allowed them to get whole lot more compliance with the courts that allowed them to expand things without a whole lot of public attention. If we hit the same pattern we did under first Trump where this is the equivalent of the big airport protests and people are going to stop paying attention in the next couple of years, that would not be good.
But I have been surprised at the willingness to say, yeah, we don’t particularly care that these people who were sent to El Salvador aren’t literally my neighbor, that they don’t look exactly like us, they shouldn’t have been sent there without due process. And that is an abstract thing that we are willing to take a stand on.
Dalmia: Do you think this is an issue that could deeply hurt the Trump administration by mounting entire resistance movements against Trump’s general draconianness by making Abrego Garcia the test case? If the Trump administration can, without due process, disappear a man whom they have admitted was wrongfully deported, it can happen to any one of us, right? And so in a lot of ways, the rights of Americans themselves become implicated once you do away with following the rule of law to the extent that this administration is doing. So how much can this hurt the administration?
Lind: The thing about the argument that “if they can do it to them, they can do it to somebody else, they can do it to you” is that I’m genuinely not sure that it’s always as powerful a motivating argument as people seem to assume it is. Because, to be honest, if I’m being told that they can go after everybody and they have all of the power and none of the accountability, that’s going to make me less likely to speak out. And so I do worry that this effort to make this threat seem real to people may very well end up creating a situation where people who are softly supportive have no interest in putting their necks on the line because, it’s simply not important enough for them to risk getting sent to to a Salvadoran prison. So what I try to point out is that on the one hand, there are more protections for U.S .citizens than for non-U.S. citizens, for native born citizens and for naturalized citizens that there’s a difference between the are asserting the power to do it and they can do it easily. And that difference does end up mattering because any friction is an opportunity to resist to force them to back down to at least drag it out.
But at the same time, this only matters as an inalienable right if it is being extended in all cases. Either we care about due process as an absolute right or we don’t. And so I think that it’s very important to kind of hold both of those in mind, that when we talk about “if they can do it to anybody, they can do it to you,” it’s not saying you’re next. And it’s definitely not saying, “if you say anything against the administration, you’ll be treated as just as badly as somebody who they’re trying to deport.” What it’s saying is either this is something that you are allowed to be proud of as an American or it isn’t.
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