We Are Well on the Road to an Immigration Police State

A roundup of The UnPopulist’s work in the first six months of Trump’s second term

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After the Trump administration launched sweeping immigration raids in Los Angeles and neighboring cities—targeting workplaces and terrorizing communities—in early June, residents came out to protest. Trump promptly seized on the protests as an opportunity to use one of his favorite authoritarian tools: deploying military forces on U.S. soil. The allure of this move, for Trump and his advisers, is that it let them expand presidential power and crack down on dissent coming from civil society.

Although on that occasion Trump opted not to invoke the Insurrection Act, relying instead on the more limited authority of protective power, Stephen Miller and others in the administration did everything they could to frame the response to Trump’s heavy-handed immigration clampdown as a lawless “insurrection,” in hopes of keeping that extreme option on the table.

While the L.A. protests—as well as those in other cities that Trump’s California crackdown sparked—have largely died down, the White House has remained as energetic as ever in pursuing its anti-immigrant agenda and developing legal workarounds to deport as many people as possible, including to dangerous third countries with which the deportees have no ties.

As things stand, Trump’s most tangible legacy, almost eight months into his second term, is drastically increasing the presence of immigration enforcement in American life. He has gone beyond creating an immigration police state and is now at the militarization stage, putting in place far-reaching surveillance, unexpected and unaccountable raids, an augmented detainment infrastructure, a ruthless deportation process, and the ever-present threat of confrontation between federal agents and local communities.

At The UnPopulist, we have extensively covered Trump’s immigration actions and the dangers they present to a free and open society. Here are three key takeaways about Trump’s formation of an immigration police state, drawn from work we have published.

One: This Was Never About Criminals

Trump’s constant canard is that his mass deportation plans are targeted at dangerous criminals, not ordinary, hardworking people. This was never true—or even possible given the scale of his deportation ambitions. As

Robert Tracinski

, director of Executive Watch, has pointed out:

Trump has promised to deport up to 20 million people—despite the fact that the best estimate of the number of illegal immigrants is only 11 million. It’s no surprise he has since broadened the scope of his plan to include deporting legal immigrants. Vance has said that if they can’t deport that many people, they could start at least by deporting one million and then build on that.

Even at Vance’s one million, there simply aren’t enough actual criminals. As

David J. Bier

, the Cato Institute’s director of immigration studies, explained in The UnPopulist:

There are fewer than half a million (425,431) removable noncitizens with criminal convictions in the United States by the government’s own estimates. Likely, many are dead, since the list includes crimes as far back as the 1970s, or out of the country, since there is no way for the government to even track non-deportation departures. About 100,000 are incarcerated in state and federal prisons and jails and can’t be removed until they have finished serving their sentences. At most, there are a few hundred thousand noncitizens with criminal convictions who are not currently incarcerated.

Necessarily, mass deportation involves targeting mostly non-criminals, disrupting the lives of not only those innocent people but also their families, workplaces, and communities. It inexorably increases police presence and surveillance, and directly impacts places of business, worship, and education.

These effects are exacerbated by the administration’s use of quotas, as well as the seething impatience displayed by Miller and other anti-immigrant extremists in the administration over what they see as the slow pace of arrests and deportations. The result? Fewer targeted arrests of criminals, not more. As Bier argues, “Mass deportation schemes with hard numeric targets will inevitably involve prioritizing the peaceful, because they are easy to capture, over the violent who are more difficult to detain.”

Longtime Chicago Tribune columnist

Steve Chapman

cited some more statistics to illustrate this point:

Thus far, many of the foreigners who have been caught in the ICE dragnet pose no discernible threat. When it made 1,179 arrests on Jan. 26, officials admitted, 566 of the detainees had no criminal records. In the first two weeks of February, NBC News reported, 41% of the 1,800 arrested were non-criminals.

What is maddening is that terrorizing the innocent isn’t even remotely necessary in order to deal with criminal immigrants.

Alex Nowrasteh

, Cato’s vice president for economic and social policy studies, pointed out that there’s a simple and easy way—one which we already know how to use—to deal with individual immigrants accused of crimes:

If convicted, they should be punished. Other undocumented immigrants, whether from the same country or as an entire group, are not to blame for the depraved actions these criminals are accused of. Collective punishment is wrong and won’t work to reduce crime rates anyway.

This reveals the administration’s actual interests: they want to change the demographic makeup of America. Here’s Bier again: “mass deportation is about a population purge—not enhancing public safety. If public safety were the true goal, then the administration would still have to rate the threat posed by these alleged criminals and prioritize resources accordingly.”

This isn’t the first time that Miller and others in the administration have used flimsy pretexts in order to slow or shut down immigration: In a video from earlier this year, The UnPopulist’s senior producer,

Landry Ayres

, detailed Miller’s attempts to link immigration with public health crises in order to more easily justify a crackdown.

When the administration does go after actual criminal offenders, it’s usually to enter into crucial legal battles on sympathetic public relations grounds. Consider the case of the eight undocumented immigrants recently deported to strife-ridden South Sudan, a country with which all but one has no ties—or any other African country for that matter.

Linda Chavez

, author and senior fellow at the National Immigration Forum, explains:

Few Americans will shed tears over the fate of these individuals, who have been convicted of murder, kidnapping, child sexual assault, robbery, and other violent crimes. But the principle at stake transcends their particular rap sheets. The U.S. government’s decision to send immigrants convicted of crimes to a country experiencing horrific conditions after being ravaged by decades of war—a country that the U.S. government itself warns Americans not to visit—is inhumane and unconstitutional, especially given what likely awaits people like them.

The message from the Trump administration is clear: If you come to America, not only will we try to deport you, but we will try to send you to the worst place we can find that will agree to take you. Often, this will involve shady deals with dictators and other oppressive governments. If you come to the United States in search of a better life, Trump might well send you to a worse one.

Two: This Was Always Going to Require Militarization and Lawlessness

Deportation at the scope and speed desired by the Trump administration can’t be accomplished with current state capacity or procedures, or in compliance with due process rights. That’s why, in order to pursue his nativist goals, Trump has sought a massive expansion of presidential power. And it’s why he has diverted resources from other government priorities.

As part of a broader comparison between Biden and Trump’s border policies, Bier summarizes this situation as follows:

He has baselessly declared an “invasion,” which under the Constitution would authorize states to make war and open the potential for habeas corpus to be suspended. He is threatening to invoke the Alien Enemies Act to deploy the military to arrest, detain, and remove people without proving to courts that they are removable noncitizens. He has moved to illegally block law enforcement grants intended for local policing and public safety for cities that fail to cooperate with his agenda. All in all, President Trump’s orders explicitly declare that he is above U.S. law, and he asserts that he can ignore any immigration law that members of Congress write.

The administration had all but telegraphed that it would be operationalizing the military for domestic immigration enforcement. The Chamberlain Network’s

Christopher Purdy

warned about Trump’s inevitable reliance on the military for this purpose in a Memorial Day essay:

Using military personnel for domestic enforcement—especially in politically charged areas like immigration—creates a dangerous feedback loop. It militarizes policy and politicizes the military. Over time, it teaches the public to accept force instead of debate or compromise to settled disagreements.

Back in October of last year, Tracinski teased out the implications of the Trump administration getting its way on mass deportation:

There are not enough federal immigration officials to carry out the deportation of millions of people, so Trump is proposing to commandeer local police and deploy the National Guard and even the regular military, sending them door to door in the streets of America’s cities to round up targeted populations. He would do it, according to the New York Times, by “an enormous expansion of a form of removal that does not require due process hearings.” In other words, he wants to create a militarized state.

While it’s true that deploying the military for domestic ends is not proscribed by the Constitution, the particular way Trump has done it, and envisions doing it in the future, defies constitutional intent. As Brookings fellow and Lawfare senior editor,

Scott R. Anderson

, explains:

The greatest limitation on the domestic deployment of military personnel, however, may be the broader limits that the Constitution places on federal authority itself. Outside of conditions of invasion or rebellion, the Insurrection Act and similar authorities generally only authorize the deployment of military forces to enforce federal law. And the substantive scope of federal law is limited, as the Constitution quite deliberately entrusts many key public responsibilities to the states. Efforts to use troops mobilized under the Insurrection Act or another related authority to act in excess of federal law—and particularly in areas of authority entrusted to the states—would thus be inconsistent with the authorizing statutes, as well as the Constitution itself.

Of course, Trump has shown that he does not care about legal limitations, racing to exceed even the fairly broad discretion granted to the executive branch on immigration policy.

Dara Lind

, senior fellow at the American Immigration Council, noted this in a conversation with The UnPopulist’s editor-in-chief,

Shikha Dalmia

: “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.”

This leads to a massive intrusion of immigration enforcement into American society. Nowrasteh explains:

Immigration enforcers go to schools, churches, and courthouses to arrest peaceful people. They operate with near-impunity in a 100-mile buffer zone along America’s borders where they run internal checkpoints, harass Americans and immigrants, and frequently enter private property without permission. ICE agents make arrests without warrants, and then just create warrants for themselves in the field after the arrests. ICE recently bragged that part of its job is keeping out “ideas that cross our borders illegally.” Show your papers to travel near the border, carry your papers or you’ll be in ICE detention for weeks, show your papers to get a job—all for immigration enforcement purposes. The U.S. is becoming a “your papers please” society, to enforce these immigration laws.

That “papers please” mentality at border checkpoints across the nation is dystopian. Dalmia describes the atmosphere created in one small Arizona town in an earlier essay:

[T]he checkpoint makes Arivaca residents feel like they are living in occupied West Bank. Anytime any Arivacan needs to leave town to take their kid to a dentist, catch a flight, go to work, they have to pass through the border checkpoint. If agents decide they want to search their car, Arivacans can either voluntarily submit and let them look and get it over and done with quickly, or they can refuse and be detained till a canine team arrives to sniff their vehicle.

The future that Trump and Miller want is one where masked, armed law enforcement agents invade churches, schools, and places of work looking for innocent people, not dangerous criminals; a future where the legal protections offered by due process are unreliable at best, and nonexistent at worst.

Three: This Will Have Consequences for Every American

As Dalmia notes, assaults on the liberties of citizens is not a bug but a feature of an aggressive immigration enforcement regime:

Immigrants are so intimately enmeshed in the American workplace and communities that the government can’t surgically excise them while leaving Americans unscathed. Behind every outsider there are insiders who benefit from him/her. Immigrants and citizens’ rights are therefore inextricably linked and government has to either respect everyone’s rights or no one’s. And in Trump’s all-out War on Immigration, the government is alarmingly choosing the second course.

We should not make the mistake of thinking that the consequences will be limited to immigrants any more than we should make the mistake of thinking that the deportations would only target criminals.

As Tracinski argues:

There’s something else substantive that this will accomplish, because what Trump is really trying to do is destroy habeas corpus and due process—a thousand-year-old legal tradition in which the courts can require the government to bring an imprisoned man into the courtroom and justify why they are holding him. Trump wants to bypass those requirements if he can whisk someone out of the country fast enough and give them to a friendly dictator.

This is not just about immigrants. If they can disappear immigrants, eventually they will disappear critics. Without due process, a citizen has no opportunity to prove his legal status or assert his constitutional rights. The Abrego Garcia case is really about whether we have a police state for everyone.

Abrego Garcia has been the most high-profile victim of Trump’s cruel deportation policies—having been sent to a “Central American torture camp,” as Institute for Humane Studies fellow and The UnPopulist columnist

Andy Craig

put it in a viral essay.

Moreover, Tracinski’s worry about suspension of habeas corpus is not theoretical. Miller has openly flirted with doing just that. “The last person to try to exercise this much power here was named George III,” Nowrasteh observes. “If tyranny comes to the United States, it will come to enforce immigration laws. Even if you don’t care about immigrants, whatever the government does to immigrants, it will eventually do to native-born Americans too.”

All of this calls into question if America can even remain a free country in the face of such draconian immigration enforcement. As renowned author and political theorist

Chandran Kukathas

put it:

[F]reedom is what America has stood for, for most of its existence—not without controversy, since it has a long history of slavery, which it has struggled to overcome both before and since the Civil War. Nonetheless, the defining ethos of American life and of American politics is the idea of freedom. ...

Anyone interested in the immigration question really ought to ask, If you are concerned about the fundamental values of this society, and if you’re concerned about the impact of immigration on those values and on this society, how much control do you want to exert? How much force and power do you want to bring to bear in order to achieve particular ends, knowing that the cost is going to be a diminution of the freedom of many people whom you would yourself regard as your fellow nationals, your fellow natives?

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One Last Thing…

The UnPopulist is a small operation that has been punching well above its weight for a while now. But as our presence in the discourse has grown, that has placed added editorial demands on us. So we recently brought on board

Birch Smith

as a contributing editor. That piece you just read—a thoughtfully curated roundup of our recent immigration coverage—was Birch’s debut for us.

Here’s a little about Birch and why we’re so happy to have him. He is a PhD student in philosophy at Baylor University, and his current research focuses on questions at the intersection of social epistemology and political philosophy—with special attention to the particular challenges that an information environment driven by social media poses for society. He’s also working on a variety of issues in political theory that sync up with The UnPopulist’s areas of interest, including the nature of political institutions, theoretical groundings for liberalism, and various issues having to do with nationalism and illiberal politics. His M.A. was in International Security, where he focused on nationalism, global connections within the far-right, and disinformation.

In short: Birch’s intellectual interests dovetail quite nicely with our own, and his editing for us has certainly reflected that.

We hope you enjoyed Birch’s first piece for us.

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