In November 2009, Homeland Security Secretary Janet Napolitano laid out President Barack Obama’s immigration agenda at the Center for American Progress, a liberal Washington think tank with close ties to the White House. After eight years of George W. Bush, voters seemed to expect change. But on immigration, Napolitano pledged to achieve reform through more of the same.
Comprehensive reform comprised a “three-legged stool,” she said, echoing centrist conventional wisdom: legal status for undocumented immigrants, greater opportunities for authorized immigration, and an enforcement crackdown. As usual, the crackdown would come first.
“It’s an affront to every law-abiding citizen and every employer who plays by the rules,” said Napolitano, referring to the presence of an estimated 11.1 million unauthorized immigrants. “We are both a nation of immigrants and a nation of laws.”
Napolitano’s insistence on enforcement measures like mass deportations as a precondition for legalization mirrors the recent political history of immigration reform in this country. Under Obama and Bush, business-aligned “establishment” wings of both major parties have tried to use tough enforcement policies in an effort to gain the cooperation of the virulently xenophobic right wing for the other two legs of the stool. But that cooperation never came.
Reformers failed to advance legalization — they could never bring the right to the table. But they did succeed in dramatically expanding punitive immigration enforcement.
The enforcement-first strategy has resulted in hundreds of miles of border fencing, a dramatically enlarged Border Patrol, a brutally efficient deportation pipeline — and a hard right that is more insistent on mass deportations and border walls than ever. Legalization efforts collapsed along with the political center that championed it.
The three-legged stool was supposed to protect “hardworking” immigrants and deport those who were undesirable criminals. In reality, centrists deployed just one leg — and it was used to relentlessly beat up on immigrants of all sorts.
Finally, under pressure from immigrant rights groups, Obama took executive action to shield many from deportation. But his administration had already spent years orchestrating mass deportations, deepening the links between immigration enforcement and the criminal justice system, and pledging to secure an already-militarized border — thus lending credence to right-wing sentiment that immigrants are criminals or hostile foreign agents.
Seeking to placate the right wing, the bipartisan establishment ended up angering everyone: Obama prompted the anti-deportation movement to mobilize against him and fed into a false narrative about unsecured borders and criminal aliens that helped lead to the rise of Donald Trump.
Trump made his way to the top of the Republican Party by calling immigrants criminals and rapists. But he wasn’t the first to use such rhetoric on his own — Democrats and moderate Republicans had endorsed such ideas for years. Immigrants were caught in the crossfire. And there they remain.
Obama’s Deportation Pipeline
The centerpiece of Obama’s deportation efforts, and the best window into the Democrats’ lurch toward the right on immigration, was the Secure Communities program, initiated under Bush in October 2008.
Secure Communities gave the Department of Homeland Security (DHS) access to an FBI database of fingerprints entered by local law enforcement after an arrest. As a result, Immigration and Customs Enforcement (ICE) received a flood of positive identifications on deportable immigrants.
ICE then issued a cascade of “detainers,” asking that immigrants be held for forty-eight hours past their release time — or far longer, given that detainers blocked people from getting released on bail — for pickup and, ultimately, deportation proceedings. By 2013, according to testimony from a Migration Policy Institute analyst before the Senate Judiciary Committee, Secure Communities was responsible for a majority of all deportations.
Secure Communities initially received little media attention even as grassroots immigrant rights groups saw people in their communities being deported and began to mobilize against it. In November 2009, when DHS announced that Secure Communities had “identified more than 111,000 criminal aliens in local custody during its first year,” the program was still little known.
That changed in April 2010 when Arizona Gov. Jan Brewer signed the virulently anti-immigrant law SB 1070, which among other things directed local law enforcement to search out people suspected of being undocumented immigrants even if they had committed no crime. The “show me your papers” law energized immigrant activists and liberals wary of the Tea Party’s rise nationwide, and drew a successful legal challenge from the Obama Administration.
SB 1070 drew a successful legal challenge from the Obama Administration. Immigrant rights activists, however, seized the opportunity to point out that Obama’s Secure Communities wasn’t altogether unlike SB 1070: both turned local law enforcement into immigration agents and created an automated deportation pipeline that began in local jails.
“Any mundane encounter with police officers could quickly become a life-changing problem for many migrants, whether they were in the United States with the federal government’s permission or not,” said César Cuauhtémoc García Hernández, a professor at University of Denver Sturm College of Law.
Unlike Arizona’s unabashedly right-wing law, Obama’s soft-spoken and sanitized mass deportation program was implemented with little scrutiny. Immigrant rights activists, however, were determined to link the two and turned to city halls nationwide in an effort to thwart Secure Communities at its entry point.
Advocates charged that the program made local police a de facto arm of ICE and that immigrants would be afraid to report common crimes. The program could also, they warned, incentivize local police to make racially biased stops, using common offenses like traffic violations as a pretext to hand people over to ICE.
A growing number of elected officials and law enforcement leaders echoed this criticism. In May 2010, the Washington, D.C., City Council unanimously announced their support for a resolution calling on the city to boycott Arizona—part of a nationwide movement—alongside a bill instructing police to not share arrest data with DHS. Other cities, like Arlington, Virginia, and Santa Clara, California, tried to block Secure Communities as well. In 2011, Illinois, New York, and Massachusetts announced that they were pulling out of the program.
But it turned out that it would be nearly impossible to do so. That August, DHS tore up their agreements with localities and asserted that the program was essentially mandatory.
All along, ICE had sent mixed messages about whether localities could actually opt out, suggesting at some points that it was voluntary, at other times that it was compulsory. Now, ICE was on the defensive. The National Day Laborer Organizing Network and others filed a major public records lawsuit, revealing internal discussions about how to handle the rebellion. One takeaway, according to the federal judge handling the case, was that there was “ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities.”
Activists had forced the federal government to reveal that its mass deportation campaign had always been premised on a lie: it wasn’t federal cooperation with localities but rather a negotiation-free imposition. ICE was happy for localities to believe Secure Communities was voluntary only so long as everyone volunteered.
By the end of 2010, the percentage of individuals targeted by detainers who were actually taken into ICE custody fell to 57.7 percent, down from 71.8 percent in October 2008, according to data analyzed by Syracuse University’s Transactional Records Access Clearinghouse, or TRAC. In December 2012, it fell to just 54.6 percent. In part, that might have been due to ICE lacking the capacity to deport the huge number of undocumented immigrants flagged by the new system. It also likely reflected the spreading resistance to the program.
Obama was pushing hard on deportations in an effort to appease the Right. Instead, he provoked the Latino communities that formed a critical part of the Democratic coalition to mobilize against him — while the Right remained unsatisfied.
Obama’s criminalization of immigrant communities, however intensive, isn’t new. It built on policies dating back to the Reagan Administration. For decades, immigration enforcement, long primarily a civil matter, has become entangled with the criminal justice system. Experts call it “crimmigration.”
The term applies to programs like Secure Communities, which use the criminal justice system to enforce immigration laws, and also to the fact that immigration enforcement became a driver of mass incarceration. Tens of thousands of border crossers are now behind bars at any given moment — not only in civil detention centers pending deportation but also in federal penitentiaries serving hard time.
Federal prosecutions of immigrants charged with illegally reentering the country, a felony, rose steadily under Presidents Clinton and Bush, then skyrocketed under Obama. Prosecutions for illegally entering the country, a misdemeanor, have jumped as well. Today, people convicted of immigration-related related offenses make up roughly 9 percent of the federal prison population, or 15,702 inmates.
Obama certainly didn’t invent crimmigration. That distinction belongs to politicians waging the war on drugs during the 1980s and 1990s, who tied the narcotic threat to immigrants. As has become clear this election, the Right can easily link distinct sources of perceived external threat to one another in Americans’ minds.
It was a key early drug-war law, the Anti-Drug Abuse Act of 1986, which made the first statutory reference to detainers, says Christopher Lasch, a professor at the University of Denver’s Sturm College of Law. Later, those detainers would become the key tool under Secure Communities to transfer immigrants from local to federal custody.
“Often, those dealing drugs have entered this country illegally and show absolutely no fear of United States law,” Rep. Gary Ackerman, a Democrat from New York, said at the time. If a suspect in local custody “is determined to be an illegal alien the INS must take the necessary actions to detain the suspect and process the case.”
The Anti-Drug Abuse Act of 1988 also tied immigrants to the narcotic threat, subjecting noncitizens convicted of the newly coined category of “aggravated felonies,” defined as murder, drug trafficking and firearms trafficking, to mandatory detention, said García Hernández.
But the nativist right wasn’t yet setting the agenda because establishment figures like President Ronald Reagan, who opposed restrictionist policies in part because of his alliance with business, were firmly in control. In 1986, Reagan signed the Immigration Reform and Control Act, which legalized nearly 2.7 million immigrants, increased the size of the Border Patrol and, in a move that prompted opposition from Latino civil rights groups, included a crackdown on employers who hired unauthorized immigrants.
Just as today, establishment centrists paired enforcement with legalization. Ultimately, however, the country’s last major legalization program was a big success. But the employer sanctions failed to have much impact, and unauthorized migration from Mexico grew.
Still, nativists had not yet gained traction and centrists maintained the upper hand. In 1990 President George H.W. Bush signed a law that actually expanded authorized immigration. The nativists, however, would soon come off the fringe.
The contemporary nativist movement dates to the late 1970s and was rooted in hysterical concerns over population growth’s purported effect on the environment. And, of course, racism: a 1965 law abolished a long-standing and unabashedly discriminatory system favoring Europeans, causing immigration from Asia, Latin America, and the Caribbean to soar, in addition to the influx of refugees from Communist nations. Legal pathways for Mexican workers, however, had narrowed over the years. Unauthorized flows of Mexican migrants, largely dictated by economic conditions on the both sides of the border, rose dramatically.
In the early 1990s, the movement exploded as an anti-immigrant earthquake shook American politics. California was its epicenter. A recession had taken hold, and the number of immigrants, authorized and not, was growing. In 1990, the estimated number of undocumented immigrants living in the United States stood at 3.5 million, and would rise to 5.7 million five years later.
For decades, hostility toward immigration has risen and fallen alongside the unemployment rate. In California, the nativist right seized the opportunity with the 1994 passage of Proposition 187.
Prop 187 denied public services to undocumented immigrants and required localities to report them to Immigration and Naturalization Service (INS, the federal immigration agency before the post-9/11 reorganization creating DHS). It asserted that people in California, which at the time was home to more than one-third of all foreign-born people nationwide, “suffered” not only “economic hardship” but also “personal injury and damage caused by the criminal conduct of illegal immigrants in this state.”
Republican Gov. Pete Wilson made the proposition a centerpiece of his reelection campaign and rode it to victory.
According to Frank Sharry, a longtime advocate and the executive director of the major immigrant rights organization America’s Voice, “The anti-immigrant groups were trying to figure out how to catch fire. And they were really effective at using the media, particularly newsmagazine shows,” said Sharry.
Demagogues, as they would continue to do over the following decades, took advantage of economic anxiety and security concerns to foment xenophobic sentiment. After the 1992 Los Angeles riots, far-right Republican presidential contender Pat Buchanan charged that “foreigners are coming into this country illegally and helping to burn down one of the greatest cities in America.”
“I can’t understand why this Administration fails to enforce the laws and close that border,” Buchanan told a crowd of senior citizens. “If I were President, I would have the Corps of Engineers build a double-barrier fence that would keep out 95 percent of the illegal traffic. I think it can be done.”
In 1994, Newt Gingrich’s Republicans won control of Congress and the nativist tide rolled into Washington. But they rolled in with President Bill Clinton’s assistance.
Clinton merged his wars on crime and drugs with an immigration crackdown, signing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRIRA, which harshly punished immigrants who had committed crimes. The law transformed immigration policy by making it easier to deport immigrants (undocumented and permanent residents alike) for a growing number of criminal offenses, made those individuals’ detentions mandatory and foreclosed most opportunities for relief. It also authorized a program called 287(g), which allowed the federal government to authorize local law enforcement to enforce immigration law.
“There certainly were things that the administration did not like in the bill,” said Doris Meissner, INS Commissioner under Bill Clinton and currently a senior fellow at the Migration Policy Institute. “And there were things that when it came to implementation, the way we went about implementing it was not necessarily what was pleasing to a lot people in the Congress. But [Clinton] was not about to be vetoing an immigration enforcement bill in ‘96 given the law enforcement agenda that he was pursuing, of which immigration enforcement was a part.”
Meissner said the administration slow-walked implementation, failing to sign a single 287(g) agreement to deputize local law enforcement and jails to enforce immigration law and only narrowly implementing “expedited removal” (which allows authorities to deport some migrants with little recourse to any judicial review).
At the time, the debate consuming centrist Democrats and Republicans was over how much to push back against the anti-immigrant right. There wasn’t so much a discussion over legalizing undocumented immigrants so much as whether to cut the number of authorized immigrants allowed into the country. When it came to enforcement, the question was not whether the policy should be harsh, but just how harsh it should be.
“The mid-nineties was when the anti-immigrant crowd really gained a lot of momentum,” said Sharry. They “made significant headway in their desire to characterize immigrants as welfare cheats, as criminals, as threats to the economy” and, after the 1993 World Trade Center bombing, “as security threats . . . The combined effect was to criminalize immigration in a dramatically new way.”
Unlike the centrists who would follow, Clinton wasn’t preoccupied with immigration reform’s three-legged stool. For Clinton, it was just about enforcement, which he tried to use to ward off Republican attacks. Clinton spent heavily on the INS, and to increase the size of the Border Patrol. His chief of staff, Leon Panetta, boasted of the administration’s “comprehensive anti-illegal immigration policy that beefs up our border and workplace enforcement inspections and has used the criminal justice system to deport a record number of criminals and other illegal aliens.”
Clinton laid the groundwork for a deportation pipeline that operationalized a rapidly-growing criminal justice system to remove millions from the country, militarized the border, and nurtured a paranoiac far-right narrative about a criminal alien invasion. This was all in an attempt to outflank the Republicans. But Clinton ended up just capitulating to the Right’s punitive demands. The pattern would repeat itself again and again over the following two decades. During the Clinton years, the parameters of the debate over immigration, much as with welfare and crime, were set by conservatives.
“He saw law enforcement as an issue that he wanted Democrats to basically take back from Republicans,” said Meissner. “Illegal immigration was increasing and increasing and that was politically an initiative that Clinton felt — in the same way that he felt with welfare reform — that was part of a new Democratic-centrist set of ideas and commitments.”
The goal was to strike a tough pose, tacking to the right in an effort to capture the center while staying just to Republicans’ left.
Staying to Republicans’ left, of course, was easy. During the 1996 presidential campaign, Republican candidate Bob Dole went so far as to support a proposal that would allow states to deny undocumented children access to public schools. He even attacked Clinton for making it so that “illegal aliens afflicted with AIDS cannot be denied taxpayer-funded medical treatment, no matter how high the cost.”
One terror-inducing Dole attack ad slammed Clinton for opposing California’s Prop 187 and accused him of giving “citizenship to aliens with criminal records” against a stark backdrop of prisoners and young and ostensibly Chicano men walking down the street.
“Twenty thousand in our prisons; four hundred thousand crowd our schools. Every year they cost us $3 billion tax dollars,” the narrator intoned. “We pay the taxes. We are the victims. Our children get shortchanged. If Clinton wins, we lose.”
Clinton, who responded to Dole’s attacks with an ad that boasted of signing “a tough anti-illegal immigration law protecting US workers,” won big in part by simultaneously cracking down on immigrants and casting Republicans as extremists.
Republicans, said University of Oregon political scientist Daniel Tichenor, were “trying to crack down on a problem that their base perceived as critical” while Clinton was “trying to be reactive and I think quite skilled at . . . casting Republicans as broadly anti-immigrant.” The president won a greater share of Latino and Asian voters in 1996 than he had in 1992.
While Clinton may have scored a short-term political victory, the real advantage would accrue to the Right. The myriad problems perceived to be caused by immigrants were becoming inseparable in American politics.
Criminality was mentioned alongside concerns over government spending and labor competition, and the criminal justice system was becoming a key enforcement tool. The war on crime shaped Clinton’s approach not only to traditional law and order matters but to immigration as well. It helped to craft a legal and political template — and a fundamentally punitive and criminological way of thinking about immigration — that would shape policy from then on.
The Post-9/11 Backlash
By the end of his second term, Clinton had done so much to outflank his right-wing critics that further crackdowns or restrictionist measures landed on the back burner.
“A couple of years ago people were advocating to build a wall around the country,” Senator Spencer Abraham, a Michigan Republican, said in 1998. ”That’s no longer the case. Before, we had heard only one side of the immigration issue. Now, we get to talk about some of the positive contributions immigrants have made.”
As the economy boomed and more virulent xenophobia declined, a push to legalize unauthorized immigrants, who numbered an estimated 8.6 million in 2000, took shape. That year, the AFL-CIO, thanks to new, progressive leadership, announced a historic shift to embrace legalizing undocumented workers.
But mostly, the subject went unmentioned. A New York Times story on presidential candidates Al Gore and George W. Bush’s aggressive courtship of the Hispanic vote only mentioned immigrants once in passing. Unemployment was down, so unsurprisingly, immigration was not discussed in any of the presidential debates.
With nativist anger at a nadir, after Bush took office in 2001, his aides discussed a legalization program. The president was negotiating with his Mexican counterpart and friend, Vicente Fox. Bush had won just over one-third of the Latino vote. But his pollsters predicted he would have to do even better to win reelection in 2004. Conservative states like Utah, North Carolina and Tennessee were issuing drivers licenses to undocumented immigrants. The rise of Bush, who liked to break into Spanish at campaign events and touted a “compassionate conservative” agenda, suggested that the Republican pendulum had swung away from Gov. Wilson’s harsh rhetoric of the mid-1990s.
But after the September 11 attacks, everything about immigration, like so many political issues, was transformed. The discussion shifted sharply back to enforcement.
Hundreds of immigrants, often from majority-Muslim countries, were quickly jailed and held on immigration charges — often in what the Justice Department inspector general found to be physically and verbally abusive conditions — and then deported. Tens of thousands of noncitizens from a list of almost exclusively Muslim and Arab nations were forced to register with authorities.
”If a loophole can be exploited by an immigrant, it can also be exploited by a terrorist,” said one DHS official, summarizing the new conventional wisdom linking national security and immigration.
The national security scare spiraled into a nationwide panic over immigration. Using tools signed into law by Clinton, Bush increasingly relied on the criminal justice system to crack down. This time, the goal wasn’t so much to placate or outflank the right. Rather, it was one piece of the domestic War on Terror’s new national security state, indifferent to civil liberties, that rose from the World Trade Center’s ashes.
“People start to see immigration as a real national security issue,” said Juliet Stumpf, a professor at Lewis & Clark Law School. “After September 11, there is a real emphasis on using the crimmigration deportation grounds and mandatory detention.”
After the attacks, local police began to play a major role in enforcement. The first agreement deputizing local cops or jails to conduct immigration enforcement was signed in 2002, even though they had been authorized since Clinton signed them into law in 1996, according to the Center for Immigration Studies, the leading anti-immigrant think tank. Thanks to the terrorist attack, an issue that hadn’t interested many Americans just a few years prior was now a preeminent domestic policy concern.
By 2004, presidential debate moderator Bob Schieffer told Bush and John Kerry that he had received “more email this week on” immigration “than any other question.” Bush, who had just that year proposed a legalization program, responded by attacking his opponent for backing “amnesty.” Kerry, while defending legalization, falsely asserted that “the borders are more leaking today than they were before 9/11,” adding that “we now have people from the Middle East, allegedly, coming across the border.”
Once again, the right wing had set the parameters of debate over immigration with Democrats’ eager acquiescence. Supposed centrists from both parties stood by proposals to legalize undocumented immigrants but conveyed outright lies about border security in an effort to win credibility. Predictably, that effort not only failed but actually backfired, further stoking post-9/11 nativist public sentiment.
“Perhaps people feel like that is the politically necessary thing to say in order to gain Republican support to move forward with other things that we truly need to do, like immigration reform,” said Democratic US Rep. Beto O’Rourke of El Paso, Texas, asked about the bipartisan track record of demonizing the border. “But it only adds to the impression that the average American has that the border is out of control, that it’s lawless, that it’s a security concern that must be contained — a complete departure from reality.”
In 2005, the undocumented population reached an estimated 11.1 million, and right-wing anti-immigrant politics increasingly set the tone. Volunteer members of an anti-immigrant militia called the Minuteman Project were patrolling the border, and Arizona and New Mexico declared states of emergency. That December, Wisconsin Republican Rep. James Sensenbrenner’s harsh enforcement bill passed the House, prompting millions of immigrants to protest in the streets in historic demonstrations the following year.
Xenophobic measures began to spring up locally as well: The mayor of Danbury, Connecticut, asked that state troopers to enforce immigration laws. In 2006, Hazleton, Pennsylvania, barred landlords from renting to undocumented immigrants.
Large-scale immigration from Mexico had made its way far beyond California, Texas, and New York and into bastions of white conservatism like Kansas, Nebraska, North Carolina, and Georgia. Working-class people had been in long-term crisis and were about to be hit by the largest economic catastrophe since the Great Depression. Unauthorized immigration had skyrocketed and the country was heading toward becoming minority-majority. Demagogues had a field day.
“This is a function of the economy,” said Meissner, referring to migrant flows. “But of course, immigration is more than the economy — it’s social issues, cultural issues, and ultimately issues of identity. And the country is changing under people’s noses, and a great deal of it is people coming illegally. That was more and more a set of contradictions and set of political tensions.”
Sensenbrenner’s bill failed to pass the Senate, and he accused Bush, who supported comprehensive reform legislation in the Senate, of shying away from his proposed crackdown. But the president, like his successor, would engage in a crackdown of his own. Quixotically, the goal of this iron-fisted policy was, as it would be under Obama, to make the case for reform.
“I’ve made no secret about the fact we need a comprehensive program,” said DHS Secretary Michael Chertoff at the time. An enforcement crackdown “clarifies the choices we have . . . The choices are clear, and the consequences of the choices are clear.”
The Bush administration orchestrated massive workplace raids. In one case, nearly 1,300 immigrants were rounded up Swift & Company meatpacking plants nationwide. A number were prosecuted and sentenced to federal prison for identity theft because they had used fraudulent Social Security cards to gain employment.
In a recent interview, Chertoff confirmed that crackdown was intended in part “to establish credibility with respect to enforcement, which would then enable reforms in a more comprehensive way.” Obviously, that didn’t happen.
Bush had backed repeated Congressional efforts to pass comprehensive reform. In 2007, they failed spectacularly when liberal critics opposed to guest-worker programs and right-wing anti-immigrant legislators blocked a measure crafted by Senators Ted Kennedy and Republicans. Expanding guest worker programs has long been a priority for business-aligned legislators. The undocumented labor force provides employers with a second-class labor market that is easy to exploit: for business, reform was worthwhile if it maintained that system in a legalized form. When the effort fell apart, however, the crackdown continued.
“It was pretty clear there wasn’t going to be legislation, but we still felt it was important to establish that, one way or the other, the government was going to apply the law,” said Chertoff. “And we’re not going to back down on enforcement. Because there had been a sense that somehow enforcement in the past had been relaxed because of political pressure.”
In other words, the Bush Administration, frustrated at right-wing opposition to legalization, engaged in a massive deportation campaign to please the Right. The Right accepted the gift and offered nothing in return.
The nuances of this failed political wheeling and dealing were likely not appreciated by many immigrants. Their reality, courtesy of ostensible reform allies in the Bush Administration, was persecution.
Meanwhile, local police and jails were playing a growing role on the frontlines of enforcement. By 2008, sixty-seven 287(g) agreements in total were in place nationwide, according to CIS. In Arizona, ICE signed an agreement with Gov. Napolitano’s Department of Public Safety. So did Maricopa County Sheriff Joe Arpaio, notorious for running an abusive desert jail camp and for using his deputies and posses to hunt down undocumented immigrants in Phoenix, arrest critical journalists, persecute political enemies, and even investigate Obama’s place of birth.
In the mid-2000s, harsh immigration enforcement became Arpaio’s calling card and made him a right-wing folk hero. First, however, he had made a political pact with Napolitano.
The two had long been close, according to former Arizona Republic reporter Tom Zoellner. In Slate, Zoellner writes that as US Attorney during the mid-1990s, Napolitano protected Arpaio during a Justice Department investigation into abuse at his Tent City Jail. During Napolitano’s 2002 run for governor, Arpaio paid her back by appearing in a commercial that may have proved decisive in a contest that she won by fewer than twelve thousand votes.
After taking office as governor, Napolitano looked the other way as complaints of Arpaio’s abusive and racist practices mushroomed. Then, she moved to Washington to take over at DHS and left Jan Brewer and the Republicans’ unabashedly anti-immigrant agenda in control.
Napolitano had tapped right-wing anti-immigrant sentiment to consolidate her power in Arizona. Taking a similar tack under Obama, she would orchestrate mass deportations in an effort to convince Republicans that the administration was serious about enforcement. Once again, establishment Democrats, like their Republican counterparts, would do the Right’s work for them in an effort to win a business-friendly reform. Immigration enforcement, and its ever-tightening linkage with the criminal justice system, increasingly took on a life of its own independent of any realistic political program.
Obama’s Failed Strategy
In 2008, Barack Obama defeated John McCain who, under right-wing pressure, had backed away from the very comprehensive reform legislation he had once championed. On immigration, the Republican business-friendly center had been consumed by the far right. It was Obama who, pledging reform, adopted Bush’s centrist mantle — and, along with it, the principle that harsh enforcement was the way to secure right-wing support.
Obama embraced Secure Communities rather than workplace raids as his enforcement tool of choice. The program, developed under Bush, was seen as a cost-effective force multiplier, employing local law enforcement to detain immigrants rather than an expensive army of federal agents. It also promised better public relations, deporting not sympathetic low-wage workers but the “apprehension and removal of dangerous criminal aliens.”
The result was an unprecedented computerized deportation machinery linking local police to ICE.
“The scale in just the number of people who were being checked against these databases increased tremendously. And what that led to was a lot of removals,” said Migration Policy Institute analyst Faye Hipsman. “It became essentially the main pipeline into the removal process, into the deportation process.”
But it soon became clear that many of those being deported had either no criminal record at all or had only been convicted of minor crimes. The centrist approach to enforcement, prioritizing the removal of supposedly “bad” immigrants, created an automated deportation pipeline as voracious and sweeping as anything their right-wing detractors could have have proposed.
Under Obama, the conversation was “revolving around this good immigrant/bad immigrant binary,” said García Hernández. Immigration moderates, he said, were “repeatedly willing to sacrifice the so-called criminal aliens in order to move the CIR [Comprehensive Immigration Reform] ball forward.”
Obama, however, could not placate a party where congressmen like Tom Tancredo, who suggested bombing Mecca and impeaching the president, held sway. But instead of fighting the Right, Obama let them dictate policy. Obama’s crackdown, like Bush’s, succeeded in deporting large numbers of immigrants. And it once again failed to bring right-wing legislators to the table while mobilizing immigrant rights activists in opposition.
In December 2010, the DREAM Act, which would have legalized undocumented immigrants who came to the country as children, failed to clear the Senate. If a bill targeting the group of undocumented immigrants most immediately sympathetic to the public couldn’t make it through Congress, it seemed increasingly clear that nothing would. Rather than sating right-wing demands for harsh enforcement, Obama’s strategy had made them even more fervent.
The next month, Republicans riding the mid-term Tea Party wave took control of the House and gained ground in the Senate. They were more hostile than ever to anything smelling of “amnesty.”
On the Right, it had not only become conventional wisdom that the United States was being invaded by “illegal immigrants” but also, thanks to the conspiracy theory that Obama was born outside the United States, that the White House was as well. Economic crisis has traditionally bolstered anti-immigrant sentiment. But the Great Recession helped usher in a novel trend: Democrats, increasingly liberals and non-white people, were adopting more favorable views toward immigration while Republicans not only remained hostile but became more emboldened and vitriolic.
The president had orchestrated record deportations to win over right-wing support for a reform bill that was going nowhere and paying a heavy price with his base as a result. In the lead-up to the 2012 presidential election, Democrats worried about turning out the Latino vote.
In June 2012, with an eye on his re-election fight, Obama announced a new program to protect the DREAMers, hundreds of thousands of undocumented immigrants who had arrived as children, from deportation. The program, known as Deferred Action for Childhood Arrivals, or DACA, was an acknowledgement that Obama had been waiting on Republican partners who might never show up. It also reflected the growing power of the Latino vote and of organized immigrant groups.
But activists still believed that the administration was balancing deportation protections for some with crackdowns on others. That year, activists gathered at the White House to strategize over the coming Supreme Court decision on the legality of Arizona’s anti-immigrant law. Napolitano, according to National Day Labor Organizing Network Legal Director Chris Newman, said “that DACA was essentially an extension of the Secure Communities policy” and that “felons get deported so DREAMers can stay.”
Representatives for Napolitano, now president of the University of California system, declined an interview request.
In 2012, Obama won reelection, beating Mitt Romney with nearly three-quarters of the Latino vote. Romney, a one-time avatar of the cleancut and soft-spoken business establishment, lost in part, many believed, because he had picked up harsh anti-immigrant rhetoric to appease his party’s right wing.
“Ni Uno Más”
With Secure Communities, Obama took a page from the playbook Clinton used to decimate welfare, orchestrate the war on crime and, of course, crack down on immigration: he endeavored to negotiate with the Right by taking up its cause. In doing so, it undermined the principles he purportedly stood for.
Both parties’ positions were becoming untenable. For Republicans, caught between the hard right and a general electorate put off by extremism, there was no easy way out. For Obama and Democrats, however, the political downsides of enforcement had risen, costing them credibility with large numbers of Latinos, while the upsides, in the form of Republican cooperation, remained illusory. Increasingly militant immigrant activism in the face of the Right’s recalcitrance meant that the only solution was to move, in fits and starts, leftward.
That December, the shift continued when the administration moved to end 287(g) task force agreements that deputized local police as enforcement agents (while leaving agreements authorizing inspections in local jails in place). But Secure Communities, which the administration continued to defend, was more efficient at accomplishing much the same thing. In 2013, Obama deported his second millionth immigrant — many of them through Secure Communities.
“It was a conscious effort on the part of the administration,” said Hipsman, “as a down payment on immigration reform.”
The political costs, however, were rising. Emboldened immigrant rights activists, standing between the Democratic Party and a critical slice of the electorate, were less and less willing to settle for half measures.
In November 2013, comprehensive reform legislation that had passed the Senate, the effort’s great last gasp, died in the House as Speaker John Boehner capitulated to right-wing legislators unimpressed with the bill’s enforcement and border militarization measures. For grassroots activists, two things were clearer than ever: Republicans were hopeless and that it was Obama who, presiding over the deportations that were tearing families and communities apart, was the problem to focus their energies on.
Inside the immigrant rights movement, a fissure had opened between well-funded inside-the-Beltway groups that had backed the Senate bill, like the National Council of La Raza, and grassroots groups frustrated at their closeness to the White House. Cecilia Muñoz, a onetime La Raza official who had sharply criticized Bill Clinton in the 1990s, was directing Obama’s Domestic Policy Council.
“The advocates who are not based in Washington, D.C., and are not very closely aligned with the Democratic Party and with the mainstream political circles were irked, and were seeing that their members . . . were suffering the brunt of this for years with very little concern resonating in the conversations about comprehensive immigration reform,” said García Hernández.
Grassroots groups believed that Washington-based organizations mistook access for influence — and in doing so offered Obama political cover for mass deportations. The grassroots strategy, said veteran DREAMer activist Mohammad Abdollahi, was to put a face on individual immigrants and “show who Obama is actually deporting even though he says he’s not deporting them.” The DREAMers joined groups like NDLON to demand “Not 1 More” deportation.
“It’s becoming something that you can’t control,” Rep. Luis Gutierrez (D-Ill.) said at the time, referring to grassroots-level pressure on Obama. “People have tried to control it. This administration has put inordinate pressure on people not to criticize the president on his immigration policy and not to talk about prosecutorial discretion.”
The Obama Administration, however, still insisted that it could not act to halt deportations on its own. With reform dead in Congress, National Council of La Raza President Janet Murguía in March 2014, under pressure from militant grassroots groups, declared Obama to be “deporter in chief,” a term seemingly cribbed from NDLON. Grassroots radicals, mobilizing on the ground in immigrant communities, had outflanked and overtaken the establishment camp in Washington.
The united opposition from radical and mainstream immigrant rights groups had put Obama in an incredibly difficult position. Sharry said that he and other immigrant rights activists met with Obama in March 2014, just after Murguía had condemned Obama.
“When Janet spoke up,” he said, “it was the most intense silence you can imagine. It was clear [Obama] was composing himself . . . to not express how thoroughly pissed off he was.”
On the ground, Secure Communities was under unprecedented stress. In March 2014, the U.S. Court of Appeals for the Third Circuit ruled that detainers were not mandatory. The next month, a federal judge in Oregon ruled the same, finding that Clackamas County had violated a woman’s Fourth Amendment rights by detaining her without probable cause.
The rulings gave activists extraordinary leverage. Cooperating with ICE wasn’t just bad policy, as they had argued, but could also make localities subject to heavy civil damages. Almost immediately, counties across Oregon announced that they would no longer honor ICE detainers. In California, Gov. Jerry Brown signed the TRUST ACT, limiting local law enforcement’s cooperation with ICE detainers in October 2013 — a far cry from the state’s brutal nativist measures in the mid-1990s.
Obama’s deportation pipeline was under heavy political and legal duress. But the deportations would continue. And so would the narrative about dangerous, murdering, raping, and drug-dealing criminal aliens that underpinned it.
In 2013, the Remembrance Project, highlighting the stories of “families whose loved ones were killed by illegal aliens,” began to receive media attention not only in far-right publications but mainstream outlets as well. Increasingly, the dominant right-wing message was that immigrants were not only taking jobs and threatening cultural norms but killing Americans.
Obama’s rhetoric was that some immigrants were bad felons while others were law-abiding workers. But the reality was that both president and his right-wing detractors had made immigration enforcement a criminal justice priority.
After weeks of back-and-forth communication, the White House failed to set up an interview for this story.
Obama’s Final Act
In the spring and summer of 2014, thousands of unaccompanied minors and families streamed across the border, fleeing accelerating violence in El Salvador, Guatemala, and Honduras. Rather than welcoming the immigrants — who, after all, were fleeing countries thrown into chaos by decades of US intervention — the Obama Administration responded harshly, moving to detain them while their asylum claims were pending.
One reason they may have done so, said Stumpf, was out of fear of the Right’s pushback. Conservative critics had asserted that the asylum-seekers had been lured to the United States by DACA’s deportation protections. (In fact, they were fleeing nightmarish violence.)
“The Obama administration had rolled out DACA, it was extremely controversial, yet it was also the biggest pro-immigrant action that the executive branch had taken,” said Stumpf. “And so I think they felt like they needed to protect it.”
Once again, Obama paired a humanitarian gesture with a draconian one. Pleasing all sides, however, was still impossible.
In November 2014, Republicans took control of the Senate and successfully cut into Democrats’ advantage among Latino voters — who, after all, are a diverse constituency in terms of class, religion, and ideology. But instead of welcoming those voters to the party, incoming Senate majority leader Mitch McConnell responded to a restive base that now clearly set the party’s immigration agenda, warning Obama that unilateral action on immigration would be like “waving a red flag in front of a bull.” The president, however, had a restive base of his own to attend to in the form of a newly unified and militant immigrant rights movement.
After the election, Obama addressed the nation during prime time to announce major executive actions to limit deportations. The centerpiece was a new program to protect millions of undocumented parents of US citizens from deportation, called Deferred Action for Parents of Americans, or DAPA. Though he didn’t mention it during his speech, Secure Communities would, at least in name, come to an end as well. A united immigrant rights had won a major victory, though its extent was far from clear.
“Felons, not families. Criminals, not children. Gang members, not a mom that’s working hard to provide for her kids,” said Obama. “If you meet the criteria, you can come out of the shadows and get right with the law. If you’re a criminal, you’ll be deported.”
In a memo issued the same day as Obama’s speech, DHS Secretary Jeh Johnson explained that Secure Communities would be replaced by the Priority Enforcement Program. Fingerprint sharing would remain in place. But ICE would limit enforcement mostly to people convicted of certain crimes and, by and large, request notification of a prisoner’s release instead of requesting that their detention be extended.
Secure Communities was in crisis politically and operationally, Johnson acknowledged. In September 2014, the percentage of individuals targeted by a detainer who were taken into ICE custody had declined to 41.2 percent while the portion of detainers marked as refused had risen to 10.1 percent — up from zero in 2008.
“The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens,” Johnson wrote. “The reality is the program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation.”
PEP’s reforms were substantial, at least on paper.
But activists were wary that the program would be merely a change in name geared to win back local cooperation with ICE and disputed Obama’s continued use of the “good immigrant, bad immigrant” dichotomy. Rhetorically, it played into stereotypes about migrant criminality and in practice failed to recognize that many immigrants who had broken the law were no worse than native-born people who had done the same. In reality, immigrants break the law far less often than native-born Americans.
“If you adopt the opposition’s messaging frame as your own whatever you say within that framework ends up further cementing the opposition’s argument,” said Lindsay Schubiner of the Center for New Community, a research and advocacy group tracking anti-immigrant and anti-Muslim groups. “I think Obama is trying to partially push back against this nativist argument. But by continuing to talk about felons he’s really just giving their narrative additional space.”
The nativist tide had been rising for decades. Democrats consistently failed to take it on. Instead, its rhetoric became even more virulent.
“As Whites see their power and control over their lives declining, will they simply go quietly into the night? Or will there be an explosion?” asked the Federation for American Immigration Reform founder John Tanton, who the Southern Poverty Law Center calls “the racist architect of the modern anti-immigrant movement,” in 1986.
The right-wing story line was set. All it needed was its orange-hued hero.
On June 16, 2015, Donald Trump announced his presidential campaign. From the beginning, his rhetoric was drenched in xenophobia. “When Mexico sends its people, they’re not sending their best,” he warned. “They’re sending people that have lots of problems, and they’re bringing those problems with [them]. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”
For many Americans, the assertions were shocking but also kind of laughable: he was, it seemed, an absurdity. This was reality television star Donald Trump, more a brand name applied to purportedly luxury goods drowning in chintz than a credible aspirant to the White House.
But for others, Trump crystallized a sentiment spreading from the far right to the heart of American fears over demographic change and economic crisis: immigrants were dangerous criminals. As Obama prioritized cracking down on criminal immigrants, the right-wing notion that average immigrants were criminals was taking hold like perhaps never before. Time and again, Democrats and moderate Republicans would underestimate the appeal of nativism to Republican voters. Immigration politics had become a powder keg. The month after Trump’s announcement, an undocumented immigrant shot and killed a young woman named Kathryn Steinle in San Francisco. The fuse was lit.
Juan Francisco Lopez-Sanchez showed signs of mental illness and said that he had found the gun, reported stolen from the vehicle of a Bureau of Land Management ranger, wrapped in a t-shirt. Lopez-Sanchez had a warrant out for a small-time marijuana offense. But there was apparently nothing violent on his record. He had been transferred from prison, where he had been serving a sentence for illegal reentry, to the San Francisco Sheriff who then released him. He would never have been prosecuted for the old, trifling pot bust he was wanted for.
Though many to this day know nothing of this profoundly idiosyncratic tragedy, it became a cause célèbre on the right and was sucked into a new national debate about immigrant criminality that Trump’s announcement had inflamed like never before.
Steinle’s killing, Trump declared, was a “senseless and totally preventable act of violence” and “yet another example of why we must secure our border.” By that month, the Center for Immigration Studies had published a map of so-called sanctuary cities that “protect criminal aliens from deportation.” CIS Executive Director Mark Krikorian took to the National Review to declare that “San Francisco’s refusal to turn over illegal aliens for the feds until they’ve been convicted of violent felonies (and the Obama administration’s support for, and even promotion of such policies) is the only reason this poor woman was killed.” He added that Trump’s “widely mocked warnings of this very danger have been vindicated.”
Breitbart likewise blamed the president, charging that “the only reason sanctuary cities like San Francisco get away with flagrant lawlessness is because the federal government and its degenerate bureaucracy allow them to do so. President Obama could have taken steps to end this ‘sanctuary city’ garbage long ago.”
To put things in perspective: Obama was being blamed for so-called sanctuary city policies that were in fact rebellions against Obama’s embrace of Secure Communities — and the result of federal judges’ rulings suggesting that it might violate the Constitution in practice. The backwardness of centrist immigration policies pushing harsh enforcement had come to a full and surreal circle. Trump, the most anti-immigrant major party presidential candidate in modern history, had made Obama’s anti-immigrant policies a centerpiece of his platform.
ICE, however, seemed to embrace the right-wing narrative and grasped for an opportunity to achieve PEP’s major goal of coaxing local law enforcement to renew cooperation. After Steinle’s murder, an ICE email to the media lamented that “an individual with a lengthy criminal history, who is now the suspect in a tragic murder case, was released onto the street rather than being turned over to ICE for deportation.”
“Bottom line,” ICE continued, is that “if the local authorities had merely notified ICE that they were about to release this individual into the community, ICE could have taken custody of him and had him removed from the country — thus preventing this terrible tragedy . . . ICE desperately wants local law enforcement agencies to work with us so we can work to stop needless violence like these [sic] in our communities.”
ICE told Jacobin that PEP has indeed coaxed localities back into the fold. According to the agency, seventeen of the twenty-five jurisdictions with the highest number of declined detainers under Secure Communities are now participating in PEP.
But ICE refused to provide a list of participating localities. According to Cook County Commissioner Jesús “Chuy” García, ICE and Secretary Johnson have been pressing them hard to renew cooperation in Chicagoland. García recalls that he told Johnson that “PEP seemed to be more of a public relations repackaging of Secure Communities; that many of the worst aspects of Secure Communities could still be found in PEP.”
It’s too early to tell whether PEP has achieved its operational goal of targeting serious criminals with more precision and leaving everyday immigrants alone, according to data analyzed by TRAC. Half of all detainers issued during the first two months of fiscal year 2016 were for people who had no criminal record, and four out of five detainers requested that individuals be detained beyond their release time. The percentage of detainer targets with criminal records actually fell after Johnson’s announcement.
“The heart of Secure Communities, the thing that was different and that rallied all this opposition, was the idea that every single interaction with local law enforcement should lead to an immigration background check,” said NDLON Litigation Director Jessica Karp Bansal. “It’s a huge problem because it entangles local police and immigration enforcement in a totally unprecedented way and PEP has changed nothing about that.”
Meanwhile, Trump has turned Obama’s enforcement crackdown against the president and used it to fan his campaign’s nativist flames. At July’s Republican National Convention, Trump slammed Clinton, asserting that “my opponent wants Sanctuary Cities. But where was the sanctuary for Kate Steinle? . . . Where was the sanctuary for all of the Americans who have been so brutally murdered, and who have suffered so horribly? These wounded American families have been alone. But they are not alone any longer.”
“We will restore the highly successful Secure Communities Program. Good program,” Trump said in August, at a major speech on immigration in Phoenix that he ended surrounded by “angel moms,” parents who spoke of losing children to illegal immigrant violence. “We will expand and revitalize the popular 287(g) partnerships, which will help to identify hundreds of thousands of deportable aliens in local jails that we don’t even know about. Both of these programs have been recklessly gutted by this administration. And those were programs that worked.”
Politicians, Democrat and Republican, have made a lot of big promises to secure the border and deport the bad guys. Yet every crackdown has simply beget calls for something harsher.
The attack on immigrants that launched Trump to the nomination has faded in the face of non-stop October surprise revelations. But it was immigration that made Trump’s rise possible, and that will play a major role in shaping the future of right-wing politics. It’s important to remember that centrist politicians helped lay the groundwork.
On the Democratic side, those centrists are being pushed to move left. DAPA, a major piece of Obama’s deportation protections, is on hold thanks to an evenly-split Supreme Court that reflects longstanding divisions on the issue that, like the Court, have for the first time become neatly partisan. Hillary Clinton, who as a US senator asserted that she was “adamantly against illegal immigrants,” has promised not to deport anyone save for violent criminals and terrorists. Clinton, said Sharry, is “running on the most avowedly pro immigrant platform in modern American history compared to the rhetoric of her husband back in the mid-nineties in the throws of this backlash . . . It’s night and day.”
But Abdollahi, the DREAMer activist, remains skeptical, citing Clinton’s checkered record to make the case that she has “public” and “private” positions on immigration, echoing recently leaked comments she made to a trade association.
“Clinton publicly talks about her support for immigrants. It just so happens though that any time she has had a chance to make a policy decision on immigration without 20/20 hindsight it has often been a position against immigrants,” said Abdollahi.
Whatever one’s view of Clinton’s changing views, they certainly have changed. The Clintons are the great triangulators of our time, experts at finding the political sweet spot at the center wherever it may have drifted. But now, the center on immigration, like much everything else in politics, has fallen apart. In 1994, roughly a third of Democrats and Republicans had positive views of immigration. Today, 35 percent of Republicans and 78 percent of Democrats do. Within the Democratic coalition, immigrant rights groups hold greater sway than ever while hardcore nativists and white nationalists run the Republican Party.
Mass deportations were intended to sate nativists’ appetite for enforcement. Under Bush and Obama, centrists embraced harsh enforcement as the prerequisite for reform. Clinton did so to outflank Republicans. In reality, they all created a massive deportation machinery and militarized border, and reinforced an ascendant right-wing explanation that helped suffering or anxious people make sense of their problems and the precarious world around them.
Trump has nearly made his way to the top by calling immigrants criminals. It wasn’t an idea he came up with on his own.
Get a six-book subscription to the Jacobin series for $49.95.