Last Friday, Immigration and Customs Enforcement (ICE) agents arrested Newark mayor Ras Baraka outside a detention center. Baraka was trying to visit the facility — which opened recently and is operated by the GEO Group, a private prison company — with members of New Jersey’s congressional delegation. Baraka was not only denied entry but arrested by agents from ICE’s Homeland Security Investigations division, even though he’s a US citizen. He was ultimately charged in federal court with one count of trespassing and released from custody after several hours.
Baraka’s arrest was just one of many recent immigration-related developments that could have easily taken up a whole news cycle, alongside Customs and Border Protection (CBP) interrogating popular Twitch streamer Hasan Piker and White House adviser Stephen Miller declaring that the administration is “actively looking” at suspending the constitutional right to habeas corpus. But while Trump’s actions may seem unprecedented, he is relying on infrastructure built up over decades, largely with bipartisan support. The difference now is that Trump is using it to target anyone and everyone, including US citizens who criticize his policies.
US immigration law grants a stunning amount of power to the executive branch. While there is legislation in place governing how many people can legally migrate to the US in a given year and dictating the grounds for deportability, most other immigration policy is largely at the president’s discretion, especially when Congress is gridlocked. The law determines who can come to the US and who can be removed; the president decides whether to carry out these removals at all.
Our immigration laws were often written with particular targets in mind: communists in the 1950s, terrorists in the 2000s. Congress established the Department of Homeland Security (DHS) after September 11th, ostensibly to protect Americans from the “terrorist threat” that lurked everywhere. DHS merged immigration enforcement with national security, trampling over everyone’s civil rights in the process. At the time, civil libertarians warned that the vast surveillance powers granted to DHS and its many component agencies would allow the government to monitor just about anyone.
The post-9/11 immigration enforcement regime is a dragnet by design. In the warped logic of the War on Terror, mass surveillance was a small price to pay to root out national security threats, who by their very nature operated surreptitiously. Lawmakers could excuse the dysfunctions of this system before Trump because of the turn-of-the-century fervor over terrorism and, crucially, because of a set of norms that they foolishly believed could remain in place throughout their lifetimes.
Under a nakedly authoritarian administration, limits to executive power — implicit and explicit — no longer exist because the president says they don’t and that’s that. Just a few months into his second term, Trump has demonstrated that if a court dares to rule against him, he’ll just defy their orders. Congress, narrowly controlled by Republicans who know Trump values loyalty above all else, is unwilling to conduct any meaningful oversight of the executive branch. The system of checks and balances only matters if we all agree that it matters.
Due process is another one of those things everyone takes for granted until it’s gone — but that, for many immigrants, was already tenuous. Trump and several other members of his administration have recently claimed that noncitizens aren’t entitled to due process, and that people who are legally in the US have nothing to worry about. That’s obviously not true, since ICE recently arrested a US citizen and refused to release him even after his family produced his birth certificate, which was also verified by a federal judge. The man was released from ICE custody, but the fact remains that due process is what prevents ICE from deporting people without cause in the first place.
It’s worth noting that ICE has wrongfully deported US citizens in the past. This isn’t a problem that is unique to Trump; if anything, it’s proof that what passes for due process in the immigration system was a farce even before he took office. Unlike people being charged with a crime, people in deportation proceedings don’t get free, government-appointed counsel if they can’t afford to hire their own attorneys. The onus is not on a prosecutor to prove that someone is deportable but on the person facing deportation to prove that they aren’t. Even this minimal form of due process is too much for the Trump administration, which has sought to strip people in removal proceedings of even the most basic legal protections.
Trump has also expressed interest in deporting US citizens, telling reporters he was open to the idea of sending “homegrown criminals” to CECOT, the prison in El Salvador to which DHS deported Venezuelan migrants under the Alien Enemies Act. With virtually no evidence, the Trump administration accused the migrants deported to CECOT of being members of the Venezuelan gang Tren de Aragua.
Unlike the migrants deported to El Salvador without hearings, Baraka was released from custody after a few hours. Piker was allowed back into the US after questioning. Both men are US citizens, which means they can’t legally be removed from or denied entry into the country. That’s not to say it hasn’t happened before: in the mid-1950s, US citizens were ensnared in “Operation Wetback,” a mass deportation campaign targeted at Mexican-Americans devised by ICE’s precursor, the Immigration and Naturalization Services. Some historians estimate that half of the two million people removed from the US under Operation Wetback were US citizens.
These new shows of force are still alarming signs that the Trump administration is willing to use the immigration system to go after anyone his administration deems a threat or enemy. It’s easy to say that Trump is flouting any attempts to check his power, that he is behaving as an authoritarian. Both statements are correct and worth repeating, but they don’t tell the whole story. With regards to immigration, Trump is, for the most part, working within the rules rather than against them. His actions indicate not the unique depravity of his administration but the banal cruelty of the system largely operating as intended.
In establishing DHS, Congress expanded the surveillance state beyond intelligence agencies, granting the executive branch further license to keep tabs on everyone within our borders, noncitizens or otherwise, in the name of national security. Congress gave the president the discretion to decide how, when, and whether to deport noncitizens. Now, Trump is pushing that discretion to its limits, and few people seem to have realized just how far that push could go.
