Tag Archives: immigration

A New ICE Policy Endangers Everybody

If you’re mistaken for somebody without the right to a hearing, who do you complain to?


Tuesday, the Trump administration expanded the concept of “expedited removal” to apply to “immigrants who can’t provide documentation that they’re in the United States legally and that they’ve been physically present here for at least two years”.

Expedited removal was created in 1996, and since 2004 it has mostly been used to quickly deport people apprehended while crossing the border illegally or within two weeks of entering the country. For years it allowed immigration officials to remove immigrants without a hearing or a review of their case if they were apprehended within 100 miles of the border.

What’s “expedited” about the process is that there’s no hearing before an impartial judge. Instead, you only get to talk to people who answer to Trump.

It will allow the Department of Homeland Security to deport people without having to place them in detention facilities for weeks or months while their cases are sorted out.

It’s not that cases will “get sorted out” faster, but that the system just won’t bother to sort them out at all. If you look suspicious (i.e., Hispanic) and don’t have believable documents on you, you could be gone just like that. (An exercise to try at home: If you were plucked off the street unexpectedly, how would you prove to DHS that you have been in the United States for the last two years?)

This raises a problem I often called attention to during the Bush administration: Whenever you eliminate due process for ANYBODY, you create a hole in the system that the rest of us could fall through. Back in the Bush war-on-terror days, the hole was to be declared an “enemy combatant”. Nobody outside the executive branch needed to be involved in that declaration, and once it was made, you had virtually no rights, not even the right to present evidence that the government had made a mistake. [Details here.]

The same principle applies to expedited removal. Our immigration officials have made a lot of mistakes, and now we’re eliminating one of the major ways mistakes get caught and corrected.

Consider, for example, 18-year-old native-born Hispanic-American Francisco Erwin Galicia. He spent more than three weeks in ICE detention because he couldn’t get ICE to believe his documents were genuine. If the new policy had been in place when he was picked up, he could have been whisked out of the country without ever seeing a judge.

Forget the specifics of immigration for a moment and just imagine any group of people who have no rights. (That’s exactly what Francisco says he was told when he insisted he had a right to a phone call to notify his mother. “You don’t have rights to anything.” He also didn’t have the right to a shower or decent food. He lost 26 pounds in 23 days.) If you get mistaken as one of those people, what can you do? The person they think you are doesn’t have to the right to tell a judge that you aren’t that person.

Even if you do get to see a judge, you might not correct the mistake if you don’t have an attorney to argue your case. Davino Watson was 23 when he was released from prison on a cocaine charge. ICE picked up him immediately and started deportation proceedings. Despite lacking a high school education, Watson correctly argued that he became a citizen at 17 when his Jamaican father was naturalized. He showed ICE officials his father’s naturalization papers.

ICE investigated his claim by not calling the number Watson gave them and instead contacting the wrong man (Hopeton Livingston Watson of Connecticut rather than Hopeton Ulando Watson of New York). The Hopeton Watson they talked to was not a citizen and did not have a son, so deportation procedures continued. Watson was held for 3 1/2 years before he was released. The $82,500 in damages that a court awarded him was reversed by an appeals court, because the two-year statute of limitations ran out while he was being held without access to a lawyer who would know stuff like that.

And in March, the Border Patrol held a 9-year-old American citizen for 32 hours because she gave “inconsistent information”, as 9-year-olds are prone to do once you’ve scared the crap out of them.

See the pattern? There are more such stories.

And those, I presume, are just honest mistakes made by over-zealous agents. What if someday an administration starts making such decisions in bad faith, and in massive numbers, without any judicial oversight? You might get deported simply because the current government finds your presence inconvenient.

It’s a simple principle: Denying anybody’s rights endangers everybody’s rights.

A Fishy Emergency Threatens the Republic

Friday morning, Trump declared a national emergency that he said would allow him to start building his wall by redirecting funds Congress has appropriated for other purposes. The speculation-to-action ratio has been particularly high since then, with political and legal experts giving conflicting views of what will happen next. Let me see if I can boil it down without adding to the confusion.

1. The declaration was made in bad faith. There is no national emergency on the southern border. Trump admitted as much: “I could do the wall over a longer period of time. I didn’t need to do this.”

As I explained two weeks ago (under the sub-head “and national emergencies”), the point of the national emergency process is to allow the President to respond to events that unfold too fast for Congress to take action. Whatever you think about the issues of immigration and smuggling on the Mexican border, they have been playing out over decades, and are less serious now than they have been at other times.

Congress has had plenty of time to consider appropriating money to build a wall, and has decided not to do it.

With no honest case to be made for either a national emergency or for circumventing Congress to build a wall, Trump once again gave a speech full of lies.

2. This is unlike any previous emergency declaration. As Trump rightly pointed out, presidents have declared national emergencies before (59 times since the National Emergencies Act was passed in 1976, according to Fox News’ Chris Wallace). But a national emergency declaration has never been used as a partisan weapon before. Wallace challenged Trump advisor Stephen Miller to “point to a single instance when the president asked Congress for money, Congress refused to give him that money and the president then invoked national emergency powers to get the money”. Miller could not answer.

A national emergency declaration has never been challenged in Congress or the courts before, but that’s because previous presidents have used them in uncontroversial ways, not because Trump is being specially persecuted by his opponents.

3. The money will be taken from more worthy projects. USA Today lists the sources.

$3.6 billion will come from a military construction fund, and White House officials admitted that “they did not yet know which military constructions might be cancelled or delayed by the move.” Military Times lists some possibilities:

a new vehicle maintenance shop at Camp Arifjan in Kuwait, drydock repairs at Joint Base Pearl Harbor-Hickam in Hawaii, F-35 hangar improvements at Luke Air Force Base in Arizona, ongoing hospital construction at Landstuhl Regional Medical Center in Germany, and new family housing builds in South Korea, Italy and Wisconsin.

Also: a middle school on an Army base in Kentucky. Lindsey Graham explained that “It’s better for the middle school kids in Kentucky to have a secure border.”

Another $2.5 billion will come from a Defense Department drug-interdiction program. So presumably it will be easier now to get drugs into the country by boat or plane. Trump’s bogus wall, which will do little to affect drug traffic, will squeeze out programs that actually catch drug smugglers.

4. Congress still has a chance to weigh in, but there’s a catch. As originally passed in 1976, the National Emergencies Act allowed what is known as a legislative veto: Congress could override the President’s declaration if both houses agreed to do so. This is, in fact, likely to happen. The Democratic House will pass a resolution against the emergency fairly easily, and the Republican Senate will probably follow suit. (In order to do so, all 47 Democrats and 4 Republicans will have to agree. Mitch McConnell can’t prevent the resolution from coming to the floor, and it can’t be filibustered.)

However, in 1983 the Supreme Court (in regard to a different law entirely) found legislative vetoes to be unconstitutional. As laid out in the Constitution, Congress passes laws and the President has an option to veto them. Congress can delegate its power to the President (as it did in the National Emergencies Act), but it can’t switch places with the President and give itself veto power over his decisions.

As a result, Congress can still undo the President’s declaration, but it requires a joint resolution, which is then subject to a presidential veto. A two-thirds majority of each house would then be necessary to override the President’s veto. This is currently considered unlikely, because not enough Republicans are willing to go against Trump.

So the most likely scenario goes like this: Congress passes a joint resolution against the emergency, the President vetoes it, and Congress fails to override the veto.

5. Then it’s up to the courts. Congress will sue on the grounds that its power of the purse has been usurped. States along the border will sue. Property owners whose land will be seized will sue. Some of those suits have already been filed. (Congress’ suit will probably wait until after its attempt to override the emergency declaration fails.) Then the courts will have to decide whether Trump’s emergency is legitimate.

Whatever conclusion you want to hear, I can point you to an expert who predicts it. Vox assembled 11 experts, and their responses amounted to: Judges shouldn’t OK this, but there’s just enough justification that they can if they want to.

The point of view most generous to Trump is that Congress screwed up when it passed the National Emergencies Act, so its power-of-the-purse is delegated, even if it shouldn’t be. The law doesn’t define “emergency”, but trusts the president not to abuse his power to declare one. Who knew we’d eventually have an untrustworthy president?

Some judges will feel that it’s not their job to second-guess Trump on this. That’s more-or-less how the Muslim Ban case came out. After the administration revised its first two obviously-unconstitutional Muslim bans, the third one passed muster — not because the 5-4 Supreme Court majority agreed with the bigoted pile of bullshit Trump used to justify it, but because five justices deferred to the president’s judgment and declined to examine the details.

As with the Muslim ban, this case hangs on the question of bad faith: How transparently faithless does the President have to be before a judge is obligated to notice?

The problem I have with the Congress-screwed-up view is that the original version of the law didn’t delegate this much power, because Congress retained the ability to override illegitimate emergencies. Now the President only needs one-third of one house to support him. So the Supreme Court changed something significant in the law when it rejected legislative vetoes.

So I would be tempted to make the same kind of argument that conservatives have made against the Affordable Care Act: The National Emergencies Act is a coherent whole, and you can’t invalidate the legislative veto while leaving the delegation-of-power intact. I haven’t heard anyone make that argument, so there must be some reason not to (aside from the fact that all of the currently active national emergencies become invalid, which might not be a bad thing).

6. And the people. This is something worth getting into the streets about. MoveOn has protests planned today, and no doubt there will be others soon.

If you live in a state or district represented by a Republican, you need to challenge your representative to defend the Republic. The expectation that Congress can’t override a veto is based on the idea that most Republicans will stand by Trump’s seizure of power. But if they hear from enough voters, they won’t.

7. Once again, conservatives in Congress and in the courts  will face a challenge: Will they support Trump, even at the expense of what was once considered a core conservative principle? Over the last several decades, much hot air has been blown about defending “the Constitution” and “the vision of the Founding Fathers”. It goes virtually without saying that neither the Constitution nor the Founders ever envisioned or endorsed a process like this: Congress refuses to fund a presidential project, the president seizes the money, both houses vote to condemn that seizure, but it goes through anyway.

Any congressional Republican who refuses to override Trump’s emergency declaration or his subsequent veto can never again claim to be a defender of the Constitution, and should never again be allowed to invoke the Founding Fathers without hearing about this betrayal of their vision. Any judge who allows this travesty to play out can likewise never in good conscience claim to be an “originalist” or “strict constructionist” rather than a partisan judicial activist.

8. There are hardly any core conservative principles left. Republican respect for the Constitution has been suspect at least since Mitch McConnell ignored President Obama’s nomination of Merrick Garland. The GOP’s claim on the Constitution further eroded when the Party decided to ignore the Emoluments Clause and let Trump profit from what are essentially bribes by foreign governments and the governments of the states. But it’s also worth considering the other conservative principles that have already fallen since Trump became the Republican Party’s nominee.

Republicans once claimed to care about the federal deficit, but they have allowed Trump to blow up the federal balance sheet in a completely unprecedented fashion. The record Bush/Obama deficit of FY2009 was a response to an economic catastrophe, but Trump’s deficits are approaching those levels in the late stages of an economic expansion, when the federal budget should be in its best shape. (President Clinton had a surplus during a comparable period.) The next recession, which is due to hit soon, will send deficits into territory never before seen.

Republicans once championed a global system of free trade, but now they stand for tariffs, presidential bullying of American corporations, and one-on-one negotiations with each country.

Republicans once were the advocates for rural America, but now Republican trade policies hit farmers harder than anyone.

Republicans claim their opposition to undocumented immigration stems from a belief in the rule of law, but they support Trump in violating our laws by refusing to let refugees turn themselves in at the border and ask for asylum.

Republicans once claimed to be the party of patriotism and freedom, and promoted Ronald Reagan’s vision of America as a “shining city on a hill”. Now they stand behind a president who is totally subservient to a Russian dictator, who shows no respect to the world’s other democracies, and instead expresses admiration and envy for brutal autocrats like China’s Xi, North Korea’s Kim, and the Philippines’ Duterte.

Republicans once styled themselves as the party of traditional family values, and (particularly during the Clinton administration) talked endlessly about the importance of a president’s character. Now they make excuses for Trump’s infidelity, corruption, sexual assaults, and shameless lying.

What ground is left for Republicans to stand on, other than bigotry against Hispanics, making the rich richer, and a naked desire to wield power?

The End of the Shutdown

Friday night, Trump released his 800,000 hostages without getting anything for them. Zero. He signed exactly the same deal that was on the table back in December: Keep the government funded at its previous level for a few weeks while an immigration/border-security compromise gets negotiated.

The fact that it came out that way is extremely important. Giving him anything, even just the “pro-rated down payment on the Wall” he had demanded on Thursday, would invite regular government shutdowns for the rest of his term. Every time some budget bill needed to be signed, Trump could say, “No. I want more or I’ll shut down the government again.”

By holding the line until things really started to get bad, Speaker Pelosi stood by the important principle of not paying ransom. If Trump wants something from the Democrats, he can offer them something positive in exchange. (That’s how politics is supposed to work in America.) But he’s not going to get concessions just by threatening to hurt people or hurt the country.

Why now? If the same deal has been available since Day Zero, why did it happen on Day 35? There were two precipitating causes: the test votes the Senate held on Thursday, which showed Republican unity beginning to crack, and the 82-minute ground stop Friday morning at New York’s LaGuardia Airport due to air traffic controllers not coming in to keep working without pay, which caused delays that rippled across the country. This was widely interpreted (correctly, I think) as a warning sign from a system about to break down.

The Senate voted on two proposals Thursday, and neither got the 60 votes necessary to proceed. But Trump’s preferred outcome ($5.7 for the Wall, plus other restrictions on immigration and asylum) got 50 votes, with one Democratic crossover (Joe Manchin of West Virginia), while the Democrats’ proposal (open the government temporarily without additional provisions) got 52 votes, with six Republican crossovers: Lamar Alexander (Tenn.), Susan Collins (Maine), Cory Gardner (Colo.), Johnny Isakson (Ga.), Lisa Murkowski (Alaska), and Mitt Romney (Utah). (And at least a few of the Republicans who stuck by Trump were not happy.) According to the Washington Post, this outcome surprised Trump, because Jared Kushner had assured him that Democrats were about to start defecting.

But pointing to the Senate as a cause just shifts the question to another level: Why Day 35? Why did Mitch McConnell finally allow the Senate to vote on something, and why did Republican senators start to break ranks?

The LaGuardia ground stop was part of a nationwide pattern: As government workers faced losing a second paycheck, warning lights were flashing and systems were beginning to fail.

The FBI Agents Association put out a report listing the effects the shutdown was having on law enforcement. Perhaps the most egregious example: The FBI agents investigating the MS-13 gang (that Trump so often features in his anti-immigrant speeches demanding a wall) were unable to pay a translator to communicate with their informants. The Commandant of the Coast Guard tweeted:

I find it unacceptable that @USCG members must rely on food pantries & donations to get through day-to-day life.

What made this growing pressure worse for Republicans was the repeated insensitivity and tone-deafness expressed by plutocratic Trump administration officials, who are clueless about the half the country that lives paycheck-to-paycheck. Chief economic advisor Larry Kudlow described federal employees forced to choose between working without pay and losing their jobs as “volunteers”. Commerce Secretary Wilbur Ross couldn’t understand why federal workers would go to food banks when they could take out loans. And Trump himself spun Ross’ comment into a fantasy about compassionate grocers who “know the people, they been dealing with them for years, and they work along.” Perhaps extrapolating from his own experience owing hundreds of millions to Deutsche Bank, he claimed that banks too would “work along” with missed mortgage payments.

As a result, polls were turning against Republicans. Trump’s approval rating dropped from 42.2% at the beginning of the shutdown to 39.3% by the end. Polls consistently showed that the public blamed either Trump or congressional Republicans for the shutdown, and believed that getting Trump’s Wall funded was not worth shutting down the government.

Now what? The spending bill just lasts for three weeks, at which point the whole standoff could start again. In an effort to claim he hadn’t lost to Pelosi, Trump threatened as much:

This was in no way a concession. It was taking care of millions of people who were getting badly hurt by the Shutdown with the understanding that in 21 days, if no deal is done, it’s off to the races!

But it’s hard to see Republicans in Congress standing by him for another shutdown. Mitch McConnell didn’t want this shutdown and certainly doesn’t want another one. (He is fond of saying, “There’s no education in the second kick of a mule.”) And ultimately, he holds the high card over Trump: If he works out a deal with Democrats and Trump vetoes it, McConnell could sway enough Republicans to override that veto. The thought of 2/3rds of the Senate voting against him on anything should be terrifying to a president who could well face impeachment before the end of his term.

So what will happen in the next three weeks? Ezra Klein lays out four possibilities:

  1. A grand bargain on immigration takes the issue off the table for the near future.
  2. Pelosi, Schumer, and McConnell reach no deal and the government shuts down again.
  3. No immigration/wall deal, but there’s no shutdown, and Trump seeks to build his Wall without Congress by declaring a national emergency.
  4. No immigration/wall deal, but no national emergency.

I foresee a lesser bargain, similar to what Lindsey Graham and Dick Durbin have already worked out: Democrats have already signaled that they’re willing to offer more money for border security, but they think the Great Wall of Trump is a stupid waste. (Not that it matters, but reality is on their side here; the Wall is a stupid waste. Republicans know this, which is why they didn’t fund it when they had the majority in both houses.) A number of Republicans (including even Trump, at times) have said they don’t want to deport the DACA people, whose cause gets a lot of sympathy from Americans in general.

The question is how much funding for how much DACA protection. Here, I think the failure of the shutdown pushes the needle towards Democrats. This is what I picture:

  • DACA recipients get permanent legal status, with a path to citizenship left vague. Democrats can promise to eventually get them citizenship, while Republicans can deny this will ever happen.
  • Border security gets the $5.7 billion Trump was asking for, but mostly for technology at ports of entry and more immigration judges.
  • Rules for legal immigration change a bit, but Congress reaffirms support for the United States’ treaty obligations under the Convention Relating to the Status of Refugees, which Trump has been ignoring.
  • Some small number of additional barriers on the border are authorized, which Democrats will be able to claim is not Trump’s Wall, but Republicans can claim is a step toward Trump’s Wall.

Finally, I hope Democrats insist that a study be done to produce something that until now has never existed: an actual design for a sea-to-sea border wall, with a realistic cost estimate and expert estimates of its effects on illegal immigration, drug smuggling, violent crime, and the environment. The era of wild claims has to end.

Trump may or may not try to build his wall without Congress by declaring a national emergency, but I doubt it will get him anywhere. (Truman wasn’t able to seize the steel industry, and that was during wartime.) Whatever he wants that declaration to accomplish will be tied up in court for the rest of his term. The point of declaring a national emergency, I believe, is mainly to con Trump’s base into thinking that he didn’t really lose.

While I don’t think it will be effective in building a wall, declaring a bogus emergency breaks another norm that protects democracy. Down the road, it could cost us dearly: A leader’s abuse of emergency powers is a common way for democracies to become autocracies.

Fantasy problems don’t have realistic solutions

As the government shuts down after Trump blew up a bipartisan compromise, The New Republic raises a question: What is the Democratic position on immigration, and is the lack of any clear position a problem?

To a certain extent this is the kind of problem propaganda always causes: When propagandists build an artificial crisis out of more mundane problems, opponents are usually stuck without a crisis-sized solution. The classic example of this is the blood libel: What solution could Europe’s “good” Jews propose to the problem of Jews whose recipe for Passover matzos required the blood of Christian children? How could they address an issue that existed only in the minds of anti-Semites?

The whole point of a manufactured crisis is to make common-sense solutions seem inadequate. We have to build a wall for the same reason we had to invade Iraq: Manageable issues have been puffed up into an existential threat that only some grand project can address.

People sneaking into our country do create a few problems, but the “border crisis” Trump keeps talking about is mostly in his mind and the minds of his followers. The wave of drugs and crime spilling into our country from Mexico is 99% fantasy. There is the occasional criminal among the undocumented, just as there are criminals among any large group of people. Some drugs are carried across the border by undocumented human “mules”, but the great majority arrives by mail, by ship, by air, or in the luggage of citizen travelers. If a complete shutdown of the border were possible, that portion of drug trafficking would shift to other avenues without any significant effect on the availability of drugs in your town.

Similarly, the Wall is a solution that only works in fantasy. (The whole purpose of “Build the Wall!” was to make Trump’s crowds cheer. That’s as far as he has ever thought it out.) Perfectly securing the border — which the Wall won’t do — wouldn’t even end illegal immigration: About half of the undocumented immigrants come in legally as tourists or on business, and then stay after their visas run out. Short of closing down foreign travel completely (and bankrupting Disney World), you won’t solve that problem.

Since it exists only in fantasy, though, Trump’s Wall can do anything. (I am reminded of the cartoon domes people used to illustrate Reagan’s fantasy missile-defense plan.) Its steel slats will have 9-inch gaps, but drug packages (or skinny children) won’t be able to pass between them. “Drones & Technology are just bells and whistles” compared to the advanced Bronze Age thinking that a wall represents.

Some Democrats imagine that giving Trump his wall will at least shut him up, but that won’t work any better than the Wall itself: As Jim Wright points out in some detail, a wall through a remote area is easily circumvented. (“All you need to defeat it is a ladder and some quiet time.” A shovel might work too.) So unless the Wall is actively manned and monitored for its full 2000-mile length, it will be useless. In other words, once it’s built the new issue will be that Democrats aren’t willing to fully fund the maintenance and monitoring of the Wall — which they won’t, because (like the Wall itself) that will be a stupid waste of money.

So what’s to be done? The biggest security problem related to undocumented immigrants isn’t anything they do themselves, but the mere fact that they’re outside the system and don’t dare claim its protection. So many of them might not testify to crimes they see, send their kids to school, get inoculated against epidemics, or insist on the rights that we want to enforce in all American workplaces. They are natural prey, so they attract predators. That hurts us all.

So the first priority should be to get them some kind of legal status. Deport the criminals among them. (I mean real criminals, not pillars of their communities who were arrested once thirty years ago.) Send back recent arrivals who have no legitimate asylum claim. Fund enough courts and judges to process the backlog on asylum claims that might be real. (That’s been our treaty obligation since 1951, by the way.) And finally, recognize that some people, however they arrived, have built a life here and are pulling their weight. So make them pay a fine or something and grant them legal residence.

Next, figure out why they keep coming. In particular, why are Guatemala and Honduras such hellholes that people are willing to walk thousands of miles to escape them? Wouldn’t it be cheaper and easier to do some nation-building there rather than deal with their refugee caravans? (Again, you need to ignore some propaganda. The great majority of the world’s population prefers to stay home, if that’s a viable option. The caravans are people escaping from real dangers, not being drawn here by the magnet of American welfare programs.)

To the extent that people are coming here to work, make legal work permits easier to get and crack down on employers of undocumented workers.

And yes, patrol the border. But do it efficiently, with those “bells and whistles” Trump shrugs off, recognizing that no one — not the Chinese, not the Soviets, not the Nazis — has ever completely shut down a 2000-mile border. Border protection won’t be impenetrable — neither would Trump’s Wall — but the point should be to keep the undocumented immigration problem down to manageable proportions.

In short, address the non-crisis with a lot of little improvements. That approach may not be bold or grand or sexy, but it makes sense. Trump’s Wall doesn’t.

Anti-immigrant rhetoric is an insult to your ancestors

An anti-immigrant cartoon from 1904. Could those be your people coming over or through the wall?

Dirty, dangerous, diseased, stealing our jobs, and arriving in waves too large to assimilate: Unless your immigrant ancestors were on the Mayflower, they suffered the same abuse.


Wednesday night, Fox News host Laura Ingraham led off her show by quoting Democratic Socialist Alexandria Ocasio-Cortez talking about how the country has changed since the 90s, making fun of her for a while, and then launching into this white-supremacist rant:

In some parts of the country, it does seem like the America that we know and love doesn’t exist anymore. Massive demographic changes have been foisted upon the American people, and they are changes that none of us ever voted for, and most of us don’t like. From Virginia to California, we see stark examples of how radically, in some ways, the country has changed. Now, much of this is related to both illegal, and in some cases legal immigration that, of course, progressives love.

From there she went into a Trump-like cherry-picking of crimes committed by immigrants [1], before coming around again to Ocasio-Cortez and the ultimate threat:

This is exactly what socialists like Ocasio-Cortez want: eventually diluting and overwhelming your vote with the votes of others, who aren’t (let’s face it) too big on Adam Smith and The Federalist Papers. … It’s clear that we need a reset on the entire issue of immigration, illegal and legal.

That segment drew cheers from white supremacists around the country, who recognize their own rhetoric when you repeat it back to them: White Americans are being overwhelming by darker immigrants who will never assimilate, but will instead remake America in their own image. [2]

The timelessness of xenophobia. But there’s a strange thing about that rhetoric: It’s been part of American discourse forever. And most of us here today — including most of the white supremacists — are descended from those darker immigrants who supposedly would never assimilate.

America has always had conflicted feelings about its immigrants. On the one hand, we take pride in being “a nation of immigrants”, a place where people come to be free and find opportunity. When Neil Diamond sang “Everywhere around the world, they’re coming to America” in 1980, that message was celebratory, not ominous. Every well-established ethnic group (except blacks and Native Americans, whose histories are unique, and who even after all these centuries have never completely been accepted as “real” Americans) tells similarly heroic stories about its first generation — people who arrived here with nothing, worked hard, and prospered.

And yet, each new ethnic group faces the same hostile tropes. Unless you arrived on the Mayflower, the white people who were here already probably had the same bad things to say about you and your ilk: You were dirty and carried disease. You brought nothing with you and had little to offer. You ate different food, spoke a different language (or your English was bad and marred by an impenetrable  accent), had different customs, and worshiped at a different church. Your skin (even if your ethnic group is considered white now) was a different shade. Your people brought crime. Having grown up under a different system of government, you were not well suited to American traditions of democracy. You were arriving in numbers too large to absorb, and the prospect of your people assimilating to American ways seemed slight.

Ben Franklin and the Germanization threat. Today, few ethnic groups are as uncontroversial or as seamlessly integrated into the American landscape as mine: Germans. In the 2000 census, we constituted 17% of the population. That makes us the largest group of whites, outnumbering the Irish and English, and puts our numbers about on a par with Hispanics.

My ancestors started coming here in the 1840s, and people who meet me probably don’t even think about Germany; I’m just another white American. I don’t know how to cook any uniquely German dishes. I can barely decipher written German and don’t speak it at all. My European vacation fantasies center on London, not Berlin.

And yet, as Annalisa Merelli pointed out last year on Quartz, if you go back far enough, German immigrants faced the same accusations that Mexican or Muslim immigrants hear today. Ben Franklin in particular worried that Pennsylvania might soon be overrun by them.

Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.

Complexion? Weren’t Germans white, like the English? Apparently not, or at least not yet.

Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted.

I don’t know my ancestry well enough to tell you whether I’m Saxon, but if Swedes and Russians are “swarthy”, I doubt I pass muster.

Remember how Trump warned that “When Mexico sends its people, they’re not sending their best.“? Ben didn’t believe any country did.

Those who come hither are generally of the most ignorant Stupid Sort of their own Nation.

So think about how that worked out. Ben was proved right, mostly: Those stupid Germans did overrun large parts of his colony, becoming the Pennsylvania Dutch. [3] They polluted English Quaker cuisine with their buttery pies and pastries, and marred the countryside with the demonic hex signs on their barns. You yourself may make potato salad in the German fashion, without even realizing that you are betraying authentic American traditions.

That ridiculous train of thought is why, when I watch well-assimilated whites (the kind of people who think of themselves as “real Americans”) denounce the new immigrants, I play a little game with myself: How long ago, I wonder, were similar charges leveled against their ancestors? How few words to you have to change to turn their attacks into diatribes against their own people?

The Irish, Italians, and other Catholics. Take John Kelly, who said that today’s immigrants aren’t “people that would easily assimilate into the United States, into our modern society.”

They’re overwhelmingly rural people in the countries they come from — fourth-, fifth-, sixth-grade educations are kind of the norm. They don’t speak English; obviously that’s a big thing. They don’t speak English.

The Boston Globe traced Kelly’s great-grandparents: Seven immigrants out of eight. Three from Ireland, four from Italy. Great-grandmother Mary Connelly probably came from Clifden in County Galway, a small town surrounded by farmland. John DeMarco, a fruit peddler,

still didn’t speak English after more than a decade in the country. His wife Crescenza, Kelly’s great-grandmother, lived in the United States for more than 30 years without learning the language.

When Sean Hannity and Newt Gingrich tell us that Muslim immigrants will be bad citizens because Islam is incompatible with American values, I wonder if they realize how closely their rhetoric matches what was said against their own religion (Catholicism) just a few generations ago. In 2010, Gingrich warned:

America is experiencing an Islamist cultural-political offensive designed to undermine and destroy our civilization.

How far is that from what Protestant minister (and best-selling author) Norman Vincent Peale said about the prospect of electing a Catholic president in 1960? “Our American culture is at stake,” he worried.

The Founders saw Catholicism as “popery”, a dangerous authoritarian system utterly at odds with the values of the American Republic. Future Chief Justice John Jay (co-author of those same Federalist Papers that Ingraham — another Catholic — worries new immigrants “aren’t too big on”) wrote to the British people on behalf of the Continental Congress, protesting against the toleration of Catholicism in Quebec:

Nor can we suppress our astonishment that a British Parliament should ever consent to establish in that country a religion that has deluged your island in blood, and dispersed impiety, bigotry, persecution, murder, and rebellion through every part of the world.

Hannity has called Islamic law, sharia, “the antithesis of our Constitutional republic”. John Adams held similar opinions about the canon law of the Catholic Church’s “Romish clergy”:

All these opinions they were enabled to spread and rivet among the people by reducing their minds to a state of sordid ignorance and staring timidity, and by infusing into them a religious horror of letters and knowledge. Thus was human nature chained fast for ages in a cruel, shameful, and deplorable servitude to [the Pope], and his subordinate tyrants.

I can hardly wait to hear Rudy Giuliani repeat Trump’s rhetoric about Hispanic crime and MS-13, since it is almost a word-for-word reprise of 20th-century denunciations of Italians and the Mafia.

The elasticity of Americanism. At every point in our history, the idea of American has stretched far enough to include past waves of immigrants, while still balking at the more recent ones. At every point, there has been a clear line between Them and Us, and every time the issues seemed totally different than what we had seen before: Once we were an English culture, then a Northern European culture, then a more generally European one (with a possible debt to Africa for jazz and a few other things), and now even that is open to challenge. Once we were a Protestant country, then a Christian country, then Judeo-Christian.

Who knows where this is headed? A few decades from now Muslims may have assimilated, while rising oceans bring waves of immigrants from the vast Indian subcontinent. Maybe then we’ll be a monotheistic or Abrahamic country, and include Muslims in a larger Americanism that still must stand fast against Hindu paganism. Maybe we’ll start to recognize Spanish and Portuguese as European languages and accept Hispanics and Latinos as allies against the new threat, whatever it is.

We have always worried about the newcomers. We’ve always thought there were too many of them, and we usually haven’t treated them well for a generation or two. But eventually we adjust to each other, and the assimilation goes both ways. (The Latinos for Trump leader who warned against a future with “taco trucks on every corner” probably doesn’t even notice that there are already pizza places on every corner. I doubt George Washington ever ate a pizza, or even knew what a pizza was.) America always changes. It changes noticeably from one decade to the next, and pretty extremely with each new generation.

It always has. If your ancestors had wanted to keep living exactly the same way their ancestors did, they probably would have stayed in the Old Country. From the English and Germans to the Guatemalans and Somalians, immigration has always given America a bias towards the New. And that has worked well for us, century after century.

In the end, elasticity has been the most enduring trait of American culture. Massive demographic change is as American as apple pie — which has this tasty Pennsylvania Dutch variant.


[1] This rhetorical trick is in the toolbox of all bigots: Take a common human failing, focus only on how it occurs inside your target group, and then propose solving the problem by discriminating against the people you hate anyway.

I first noticed this back in the late 70s, when anti-gay crusaders argued that gays shouldn’t be allowed to be teachers, and cited cases where gay teachers had sex with their students — as if that were some special gay problem unrelated to all the straight teachers who have sex with their students.

This time, the common failing is crime: Any large-enough group of people is going to have criminals in it. So of course there are criminal undocumented immigrants and horror stories about their crimes, none of which would have happened if only we’d cracked down on all undocumented immigrants a long time ago.

Such arguments can sound very convincing until you imagine one aimed at you. For example, there are probably enough people named Doug in the US to include some murderers and rapists. What if somebody like Ingraham devoted an entire show to telling totally true stories of Doug-committed crimes and the horrible suffering endured by their — I mean our — innocent victims? All that pain could have been avoided if only the law had let police lock up all the Dougs a long time ago.

[2] After seeing the huge backlash her comments had leashed, Ingraham led off the next night’s show by denying that “massive demographic changes” have anything to do with race. Instead, she claimed to have talked about “secure borders” and “families who have suffered the tragic results of illegal immigration”, as if she had never mentioned legal immigrants (and their votes) at all.

This is the dance the Party of Trump does these days: They’re not Nazis, they just re-tweet them and tell America what fine people Nazis are. The day when whites become a minority in America is an approaching apocalypse, but that’s because of “Adam Smith and The Federalist Papers” or something, not race. Republicans are not anti-black or anti-brown, they’re pro-white, like Rep. Steve King who asked: “Where did any other subgroup of people contribute more to civilization?”

[3] Dutch in this case doesn’t have anything to do with Holland. It derives from Deutsch, meaning German.

Trump doesn’t want skilled immigrants either

Last week I pointed out the fallacy that Trump only objects to illegal immigration, and is just trying to uphold US laws. (Not only is he separating families that have legally applied for asylum, he’s also going after legal immigrants who are trying to gain citizenship by volunteering for the military, and looking for excuses to void the citizenship of naturalized citizens.)

This week I want to expose another fallacy: Trump just wants a better class of immigrants, people with skills rather than the uneducated and desperate poor, who will just come here and go on welfare. In a speech to Congress a month after he took office, he said:

Nations around the world, like Canada, Australia and many others, have a merit-based immigration system. It’s a basic principle that those seeking to enter a country ought to be able to support themselves financially. Yet, in America, we do not enforce this rule, straining the very public resources that our poorest citizens rely upon. According to the National Academy of Sciences, our current immigration system costs American taxpayers many billions of dollars a year. [1]

But no, he doesn’t want skilled immigrants either, even if they are brought here by a company that wants to employ them. The RAISE Act, which the administration supported, would have favored immigrants its point system defined as meritorious, but would also have cut legal immigration in half. It’s arguable whether a high-merit immigrant is more or less likely to get in under those rules. But other rules are unambiguously negative for such people.

Jennifer Minear is a lawyer who consults with companies trying to bring in skilled workers on H-1B visas. In this interview, she describes how the US Citizenship and Immigration Services has changed its rules to harass and discourage such workers, as well as foreign students, whose tuition supports some of our top universities and who sometimes go on to found successful American companies that employ native-born citizens. According to new regulations, she says:

USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial. … Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear, he or she is legally obligated to remain in the U.S. and appear before an immigration judge. … For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.

So suppose you’re a software designer from India who has an H-1B visa to work at, say, Google, and you apply for an extension. The backlog at USCIS might prevent the extension from going through before your visa expires. If your application is denied (more and more are, under Trump), you get an NTA. Now you’re in limbo until your deportation hearing: You can’t work, you can’t leave, and if you’re deported it will be harder for you to ever get a visa to come back.

If you’re a foreign student, your visa might get cancelled because your school screws up its paperwork. [2] An NTA might be your first notice that something is wrong. So you also wind up in limbo.

Minear concludes that many talented foreigners will hear horror stories like these and conclude that they don’t want to risk coming to the United States at all.

I think this policy memo represents another piece of a well-organized and systematic effort by the current administration to make the process of legal immigration to the United States as difficult as possible for both immigrants and the employers who sponsor them. … I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies – to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally.

Other countries, especially developing countries, have long complained of a “brain drain” as their best minds pursue opportunities in the US. But under Trump, it appears we are planning to put a stopper in that drain ourselves. USCIS has also proposed

to rescind the final rule published in the Federal Register on January 17, 2017. The final rule established a program that would allow for consideration of parole into the United States, on case-by-case basis, of certain inventors, researchers, and entrepreneurs who had established a U.S. start-up entity, and who had been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

So even if you are in the middle of starting a job-creating company here, you can’t come. The same document proposes a change that Stuart Anderson (who was the interviewer in the Minear article) describes like this:

Another more direct worry is the Trump administration has published its intention to restrict the ability of international students to work after graduation on Optional Practical Training (OPT), which allows for 12 months of work for students. OPT in science, technology, engineering and math (STEM) fields allows for an additional 24 months of work. Educators say OPT makes a U.S. education more practical and “real world.”

Anderson notes that international students have already started to avoid the US. There was a 4% drop in international enrollment between 2016 and 2017, with a 6% drop in graduate students in science and engineering, and a 21% drop in graduate students in science and engineering from India. This is a problem for US students and universities, not just foreigners, because foreign students are often cash cows that allow universities to provide more services to Americans.

About 90% of U.S. universities have a majority of international students among full-time enrollees in graduate level computer science and electrical engineering. If the number of international students in those fields declines significantly, then there will be fewer such programs available for U.S. students. Moreover, professors who rely on graduate students to conduct research are likely to relinquish their positions and pursue employment at companies, reducing the role of U.S. universities as a center of basic research.

So economically, the new Trump policies are probably destroying more opportunities for native-born Americans than they create. What’s the point of them, then? Perhaps it has something to do with what Trump claimed about European immigration this week in an interview with the English newspaper The Sun:

I think what has happened to Europe is a shame. Allowing the immigration to take place in Europe is a shame. I think it changed the fabric of Europe and, unless you act very quickly, it’s never going to be what it was and I don’t mean that in a positive way. So I think allowing millions and millions of people to come into Europe is very, very sad. I think you are losing your culture. Look around. You go through certain areas that didn’t exist ten or 15 years ago.

WaPo’s Philip Bump points out that “culture” is white nationalist code for race.

That argument — that immigration changes existing “culture” for the worse — is a staple of white nationalist rhetoric in the United States. Trump has never explicitly argued that immigration is a threat to white Americans, but he’s made numerous comments in the past that tiptoe around that point.

I don’t usually use the same cartoon two weeks in a row, but this one is perhaps even more on-point this week than it was last week.


[1] The EconoFact web site disputes this claim:

The evidence does not suggest that current immigrant flows cost native-born taxpayers money over the long-run nor does it provide support for the notion that lowering immigration quotas or stepping up enforcement of existing immigration laws would generate savings to existing taxpayers.

NPR’s Joel Rose looked up the study that Trump seemed to be quoting, and noted that it doesn’t really support his claim either.

Trump appears to be referring to this study published last year by the National Academy of Sciences. It found that “the impact of immigration on the wages of native-born workers overall is very small.” The study also found that first-generation immigrants are more costly to state and local governments. But the children of immigrants, on the other hand, are among the “strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.”

[2] Former INS associate commission Paul Virtue explains:

The key difference between the new policy and that established in September 1997 [in a memo Virtue wrote] is that under the new policy the date on which a person begins to accrue unlawful presence is not tied to an official determination. Therefore, an individual may learn only after the fact that he or she has already accrued months of unlawful presence and is left with no recourse for avoiding the 3- and 10-year bars to admission.

Family Separations: Should we be horrified, relieved, or just confused?

It’s not clear what Trump’s executive order means, or what will happen in 20 days.


The national outrage against the Trump administration’s family-separation policy kept ramping up until Wednesday, when Trump seemed to back down. But the executive order he signed is confusing, and what exactly it means is still being hashed out.

The fundamental contradiction. The heart of the problem is that the order mandates two outcomes that look contradictory:

  • It apparently endorses the zero-tolerance policy of criminally charging everyone caught crossing the border somewhere other than an official entry point. “This Administration will initiate proceedings to enforce this and other criminal provisions of the [Immigration and Naturalization Act] until and unless Congress directs otherwise.”
  • But it also seems to end the family-separation policy that zero-tolerance has led to: “It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.”

So:

  • We’re going to continue enforcing the law.
  • Enforcing the law required us to separate families.
  • But we’re going to stop separating families.

Imagine that you’re a Customs and Border Patrol officer trying to obey this order: What do you do?

Flores. The most obvious answer is to imprison the children along with the parents. However, once you get past 20 days that is illegal under what is called the Flores settlement, a series of consent decrees the government has signed going back to the Clinton administration. Vox explains:

The Flores settlement requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible.

No judge is going to believe that jail or a government internment camp is the least restrictive condition possible.

The administration can’t just back out of Flores on its own; a court has to let them out of it. The executive order instructs the attorney general to ask the court to modify Flores “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

But there’s really no reason why a court should do that — and the judge in charge seems particularly unlikely to — because the original reasoning of Flores still applies: The kids have done nothing wrong and don’t deserve punishment. The threat that the government otherwise will mistreat them in an even worse way (by separating them from their parents) is simple extortion, as I think the judge will clearly see.

Congress. Congress could supersede Flores by writing a new law explicitly describing how the children of parents charged with illegal entry should be handled. But with the Republican majority deeply divided on how harshly to treat immigrants, and the leadership unwilling to turn its back on its anti-immigrant radicals (and on Trump) to craft a compromise bill that could get Democratic votes, that’s very unlikely to happen, especially in the next 20 days.

Thursday, a far-right immigration bill failed to pass the House by a wide margin, 193-231. That vote was supposed to be followed by a vote on a less draconian “compromise” bill. (The compromise was between moderate and conservative Republicans. No Democrats were consulted.) But that vote was postponed until next week, because supporters couldn’t round up enough votes. In a tweet Friday, Trump reversed course on his demands for a new law, and instead urged Congress to “stop wasting their time on Immigration” until after the November election.

What does he think should happen to the families between now and November? It’s a tweet; there’s no space to spell that out. At any rate, it’s quite likely that neither the courts nor Congress will resolve the executive order’s contradictory instructions. What then?

Confusion within the administration. Thursday, CBP and the Justice Department made contradictory statements. A CBP official said:

We’re suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody.

But a DoJ spokesperson (coincidentally named Flores) said:

There has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally instead of claiming asylum at any port of entry at the border.

So it looks like the return to the previous procedures is temporary: Zero-tolerance prosecutions will resume as soon as CBP can find space to house the families, which will number in the thousands. Immigrant detention camps — there’s a debate about whether to call them “concentration camps”are being assembled on military bases. This also was envisioned in Trump’s executive order:

Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes.

These camps will set up a conflict with the courts: Flores allows holding children in such settings for 20 days. Trump wants to hold them “throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings”, which could be years. (The current average wait time at the most overloaded immigration court, in Houston, is 1751 days, or more than four years.)

Changing the process. That time could be reduced under a proposal by Ted Cruz to hire more judges, open more courts, and make decisions in 14 days. (That raises its own problems: A family that runs for its life and arrives on our border with nothing can’t put its asylum case together in 14 days.) Another option is to abandon due process altogether, as Trump proposed Sunday, tweeting:

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.

I’ll repeat a point I used to make when the Bush administration was threatening habeas corpus: Any time people can be imprisoned, deported, or otherwise harmed without a hearing, there’s a hole in the legal system that all kinds abuses can slip through. Suppose you, an ordinary American citizen, get swept up in an ICE raid by mistake. If there’s no hearing, who will you explain the mistake to? Or suppose it’s not a mistake, and somebody in ICE just doesn’t like you? You may find yourself on a street corner in Juarez, telling your story about how unfair this is to anybody who will listen.

If all this sounds crazy, that’s because it is. There actually is no emergency that requires this kind of response. There is a problem of rising backlogs in immigration courts. Cruz’ additional judges would help with this, but there’s nothing wrong with a case taking, say, months to assemble and decide, rather than 14 days.

In the meantime, there are far less cruel (not to mention less expensive) ways to handle the families than to lock them up, either together or separately. Sonia Nazaro explained in Friday’s NYT:

The family case management program, a pilot started in January 2016, allowed families seeking asylum to be released together and monitored by caseworkers while their immigration court cases proceeded. Case managers provided asylum seekers with referrals for education, legal services and housing. They also helped sort out confusing orders about when to show up for immigration court and ICE check-ins. And they emphasized the importance of showing up to all court hearings, which can stretch over two or three years.

The pilot was implemented with around 700 families in five metropolitan areas, including New York and Los Angeles, and it was a huge success. About 99 percent of immigrants showed up for their hearings.

It also did something Republicans love: It cut government spending. The program cost $36 per day per family, compared with the more than $900 a day it costs to lock up an immigrant parent with two children, said Katharina Obser, a policy adviser at the Women’s Refugee Commission.

The pilot, scheduled to last five years, was abruptly canceled by the Trump administration almost exactly a year ago.

Other alternatives to prison have also excelled. ICE has two programs that use electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting and global positioning technologies to track people who have been released from detention while their cases are being heard, at a cost of 30 cents to $8.04 per person per day. In 2013, 96 percent of those enrolled appeared for their final court hearings, and 80 percent of those who did not qualify for asylum complied with their removal orders.

The Trump administration isn’t being driven to harshness and cruelty, it is seeking out ways to be harsh and cruel. As Jeff Sessions and several other administration officials have admitted, the point is deterrence. Families that are being terrorized by gangs in Guatemala or Honduras need to understand that if they come here, we’ll terrorize them too.

Dehumanization. The main thing that has gone wrong for the administration these last two weeks is that the American people have been seeing asylum-seeking families as human beings. The recording of crying children at a toddler jail was effective because it brought home the point that these are just children, like your kids or anybody else’s. (This was precisely the point Fox & Friends host Brian Kilmeade needed to deny: “Like it or not, these aren’t our kids.“)

Trump has responded to this outpouring of human sympathy by doubling down on his dehumanizing rhetoric and his effort to raise fear of an imaginary immigrant crime wave. In Trump’s version of reality, families aren’t coming here to escape danger or seek a better life, they “invade our Country“. They “pour into and infest” America. They don’t establish families like human beings, they “breed” like rats. He responded to the sympathy Americans have shown for migrant families by hosting a meeting of people who have had relatives killed by undocumented immigrants. Unlike the families Trump has separated by government policy, these families are “permanently separated” — implying that the latter injustice somehow justifies the former. [1]

Sarah Jones writes in The New Republic:

Trump did not invent this language from whole cloth. Modern history is full of examples of political regimes that has described certain populations as subhuman—often to justify treating them as such. In the most extreme cases, that rhetoric preceded mass killing.

Trump’s dehumanization of Hispanic immigrants doesn’t have to go that far, but we don’t actually know where it’s going, and this kind of thing never goes anywhere good. Once you start thinking of people as less than human, and you gather thousands of them together in camps, how do you argue against any form of cruelty someone wants to inflict on them? (Miniver Cheevy makes the case that the Nazis (or at least not all of them) didn’t set out with the intention of genocide. But their short-term solutions to “the Jewish problem” left them with camps that were expensive to run and filled with subhuman vermin. When the Final Solution of annihilation was proposed, the logic seemed inescapable.)

Reunification. Even if the prosecutions and separations are suspended, what happens to the kids the government has already taken? CBP claimed on Friday that the 500 or so kids it hadn’t yet turned over to other agencies would be reunited with their parents by Sunday. But that leaves another 2,300 or so. (Homeland Security claims 2,053.) Often the parents have no idea where their children are, and it’s not entirely clear that the government knows either. (DHS claims it does.) A public defender described the situation in The Washington Post:

In a typical meeting, the defendants in a federal criminal case ask the same questions: How much time am I looking at? What do these charges mean? Is my judge fair? Should I go to trial or plead guilty? But things are different in El Paso now. In the wake of the Trump administration’s policy to purposely separate parents and children at the U.S.-Mexico border, my clients now ask: Where is my little girl? Who’s taking care of her? … I have to explain to these parents that I might never be able to answer their questions.

… At another hearing before a different judge, as one of my colleagues asked the agent on the stand about the whereabouts of our client’s child, the prosecutor objected to the relevance of the questions. The judge turned on the prosecutor, demanding to know why this wasn’t relevant. At one point, he slammed his hand on the desk, sending a pen flying. This type of emotional display is unheard of in federal court. I can’t understand this, the judge said. If someone at the jail takes your wallet, they give you a receipt. They take your kids, and you get nothing? Not even a slip of paper?

But that’s only a problem if you picture these families as human. If “they’re not our kids”, if they represent an invasion or an infestation that’s going to come here and breed, then everything is going fine. Carry on.


[1] For what it’s worth, I’ve discussed this fallacy before: You can play the same trick on any large group of people. For example, take Americans whose first names begin with D, a group that includes both myself and Donald Trump, plus millions of other people. Undoubtedly, some of those millions are criminals or even murderers. You could host a meeting of their victims, who do indeed deserve sympathy. But would that really make a case for throwing Trump and me out of the country?

Even if you ignore the collective-guilt problem — what does a murder committed by David or Denise have to do with me? — you’d need more than just anecdotes to make any kind of case at all. Are D-named people statistically more likely to commit violent crimes? Immigrants — illegal or otherwise — aren’t.

The Shutdown, DACA, and Immigration: Where We Are

A few hours after last week’s Sift posted, a compromise ending the 3-day government shutdown, at least temporarily, passed the Senate. By evening President Trump had signed it, and federal employees returned to work Tuesday morning.

Here’s what was agreed to:

  • A continuing resolution maintained previous spending levels for another three weeks, until February 8.
  • The Children’s Health Insurance Program was reauthorized for another six years.
  • Three taxes that were part of the Affordable Care Act got delayed for a year: on medical devices, on so-called “Cadillac” health insurance plans, and a general tax on health insurance plans. The expected increase in the deficit is $31 billion.
  • A number of Republican senators agreed to work on a bill to protect the Dreamers from deportation, and Majority Leader Mitch McConnell agreed to let such a bill come to a vote in the Senate.

On the left, many angrily charged that the Democrats had “caved”, and that the Dreamers had been betrayed or abandoned. I don’t see it that way. For the most part I agree with Ezra Klein’s view: that if no larger agreement can be reached in the meantime, Democrats will be in a somewhat better position on February 8 than they were last Monday:

if Democrats do need to shut down the government in three weeks, they’ll do so with the Children’s Health Insurance Program funded for six years, rather than seeing it weaponized against them. That’s a big deal, both substantively and politically.

McConnell’s promise may or may not amount to much in itself, but I think it matters in the public perception. If some kind of DACA compromise can pass the Senate, the House can still kill it, but that will have a price.

What matters in a shutdown. The American public doesn’t like government shutdowns. Government workers and contractors don’t like not getting paid. People who depend on government services don’t like doing without them. Families don’t like being turned away at national parks.

For the two major political parties, it’s not even a zero-sum game; it’s a negative-sum game. A common knee-jerk reaction to a shutdown is to blame both parties and lose a little more faith in American democracy. (In a parliamentary system, failure to fund the government would result in new elections.) The only political justification for causing a shutdown is if you believe that the blame will overwhelmingly be charged to the other party. If that’s true, then it tends to snowball: More and more of the public doesn’t understand why the party that is losing the shutdown doesn’t give in.

How this one was playing out. At the outset, there was good reason to blame the Republicans: They control all three power centers, after all.

What’s more, the main issue on the Democratic side is a popular one: Hardly anybody wants to see the Dreamers deported, which could start happening in March, thanks to Trump’s executive order reversing Obama’s DACA executive order.

The problem is that support for the Dreamers among the general public is shallow. Lots of people sympathize, but not that many are willing to make sacrifices. Worse, Republicans had cynically held CHIP back as a bargaining chip rather than reauthorizing it back in September. No one was really against CHIP, but Ryan and McConnell saw it as something they use in precisely a situation like the one we just had.

So if the shutdown continued, the messaging war looked like it might turn around to favor the Republicans: Democrats were blocking a deal that included CHIP because it didn’t include DACA, so they were hurting kids to help illegal immigrants.

Schumer could see that snowball starting to roll, particularly in red and purple states where Democratic senators have to run for re-election in November, so he got out quickly, before any of the vulnerable Democratic senators felt like they had to defect.

Standing up for something. Schumer’s critics say that the Democrats should have made a stand. The problem with making a stand on a shutdown is that a shutdown doesn’t end in some natural way. Democratic stands on ObamaCare and the Republican tax cut ended: one in victory and the other in defeat. They are issues to take to the voters in 2018.

But a shutdown doesn’t end until somebody gives in, and if the other side is happier with their position than you are with yours, they’re not going to be the ones. So the question becomes: How far are you willing to take this? What if it gets to be March and the Dreamers start getting deported anyway? What if it gets to be June and nobody can go to Yellowstone? What if it’s November and voters are going to the polls? How far?

The endgame, in that scenario, is that Democratic senators defect one-by-one until the Republicans can pass what they want. Schumer didn’t want that.

The next showdown. Instead, he maneuvered, hoping to reach February 8 with a position that would be easier to defend. I think he succeeded at that: CHIP will be off the table. McConnell either will or won’t have allowed a vote on a DACA compromise. If he doesn’t, that’s another simple argument the public can understand: We tried to bargain in good faith, and the other side wouldn’t.

The ideal scenario for Schumer is that a DACA compromise passes the Senate before February 8, hopefully by a wide margin. (In 2013, the Senate passed an immigration bill 68-32.) It’s not clear that McConnell would be against this.

The fate of all immigration compromises is in the House, where they would also pass if they could get to the floor, but the Republican leadership blocks them. That sets up a shutdown demand that I think Democrats can sell: Ryan doesn’t have to support the Senate’s DACA compromise, he just has to let the House vote on it. Let my people vote!

An additional point is that the longer the DACA negotiations stay on the front pages, the more the Republicans undermine their own most popular arguments. What Trump wants in exchange for DACA isn’t just border security, but a sharp reduction in legal immigration, and a shift towards more white immigrants. That supports the Democrats’ main point: The whole issue isn’t about legality, it’s about race. It’s about Making America White Again.

Even if a permanent solution isn’t reached — that’s the current conventional wisdom, which could change —  a deal that prevents deportation temporarily and leaves the ultimate verdict to the 2018 voters is not the worst outcome.

Conclusion. In short, I think Schumer abandoned a losing position in order to set up one with more possibilities. I’m withholding judgment until I see how this plays out.

Lies, Damned Lies, and Trump-Administration Terrorism Statistics

If you define your categories just right, you can create the illusion that Trump’s Muslim ban has something to do with terrorism, and justify an irrational fear of immigrants.


Last February, President Trump told a lie to a joint session of Congress:

According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.

He used this claim to justify his executive order to keep people from seven (later reduced to six) Muslim countries out the United States.

Tuesday, the Departments of Homeland Security and Justice published a report to back up Trump’s lie. The Lawfare blog explains how you have to manipulate the data to support Trump’s claim and his executive order:

  • Substitute “international terrorism” for “terrorism”, so that you can ignore all the instances of domestic terrorism, where most of the perpetrators are native-born. When Wade Michael Page killed six people at a Sikh Temple in Wisconsin, for example, that would probably have been classified as domestic terrorism (if Page hadn’t short-circuited the legal process by killing himself). Dylann Roof’s shooting of nine at a black church in Charleston wasn’t classified as terrorism at all; it was a hate crime. Nobody knows what to call the Las Vegas shooting, but if shooter had been from Yemen it would of course count as “international terrorism”. The report considered only federal convictions, but according to another Lawfare analysis: “Other crimes that could easily fall under the domestic-terrorism umbrella are charged at the state level, making them even more difficult to track.”
  • Include nearly 100 foreign-born terrorists who didn’t come here, but were extradited here so that we could prosecute them. Imagine that we hadn’t killed Osama Bin Laden, but instead had brought him to New York and convicted him of conspiring in the 9-11 attacks. The HS/DoJ report would then count him as a foreign-born convicted terrorist. In addition to such foreign conspirators whose role in terrorism didn’t involve entering the U.S., our terrorism laws also cover attacks against American citizens on foreign soil, where American border security isn’t relevant in any way at all. So if Ahmed Abu Khattala is convicted of participating in the Benghazi attack, he will count as a foreign-born convicted terrorist also.
  • Fudge the difference between foreign countries in general and the ones mentioned in the travel ban. Even if you accept HS/DoJ’s skewed set of categories, the resulting analysis doesn’t support Trump’s executive order. Lawfare says: “The six listed countries are not among those with the greatest representation on the list of terrorism-related convictions from 2001 to 2015. Only one — Somalia — is even in the top five, and it ranks fifth.” For example, Saudi Arabia (not on Trump’s list) accounted for 15 of the 19 9-11 hijackers. None of the other four came from listed countries.

So what would happen if you did an honest analysis of the foreign-born role in American terrorism? Lawfare’s Nora Ellingsen and Lisa Daniels  found some of the flaws in the data too difficult to overcome (like the domestic terrorists charged under hate-crime and other non-terrorism laws), but ignoring those problems (which they admitted would still make their numbers too high), they made an attempt back in April.

So what would the numbers look like if we excluded extradited subjects while including all of these domestic terrorists—the approach that seems to us the unbiased way to express the real rate at which foreign-born, as opposed to domestic-born, people are committing terrorist or terrorism-related crimes?

If we clean up the data to account for the issues described above, instead of accounting for between 63 and 71 percent of terrorism convictions, foreign-born persons would likely account for only 18 to 21 percent of terrorism convictions.

Quartz pointed to another problem: Both the HS/DoJ report and its clean-up by Lawfare count not just acts of terrorist violence, but also “terrorism-related” crimes that could be just about anything.

[T]he vague term “terrorism-related charges” inflates numbers by including not just people who broke laws “directly related to international terrorism,” but others who were convicted of totally unrelated offenses, such as fraud or illegal immigration in the course of a terrorism-related investigation. … One example of how this can happen is the case of three Middle-Eastern grocers who were convicted for stealing boxes of Kellogg’s cereal in 2000 — but remained on the list of terrorism-related cases because the Federal Bureau of Investigation questioned them after a source inaccurately tipped agents that the three men had tried to buy a rocket-propelled grenade.

Another problem in the data: Maybe the Feds find so many “terrorism-related offenses” among people born in Muslim-majority countries because that’s where they’re looking. For example, the HS/DoJ report tells about Uzair Paracha, a Pakistani convicted of “providing material support to al Qaeda”. He was never connected to any actual act of terrorism, but was convicted of helping somebody whose hazy plans “to attack gasoline stations” never got specific enough to carry out. (The plot to bring him back into the U.S. failed, but exactly what he would have done if he got here is unclear.) The somebody “discussed” giving Paracha and his father $200K in exchange for their help, but the money never actually changed hands, and maybe never existed in the first place.

I have to wonder: If the Feds went after domestic terrorist groups with equal vigor, if they put all known white supremacists under constant surveillance and interpreted every big-talker’s violent fantasy as a “plot” that turned all his listeners into “conspirators”, how many additional terrorism-related convictions could they add to their total? (Dear FBI: In bars, I have materially aided plots against the Koch brothers by buying the next round. None of us had any weapons or knew exactly where the Kochs live, but if stuff like doesn’t matter, we’re guilty.)

In short, the numbers in the report really have nothing to do with the terrorist tendencies of immigrants or refugees, and say nothing about whether we need to change the way we let foreigners enter the United States. They’re just artifacts of the way the terms are defined. They do not at all support the White House’s subsequent claim that “Our current immigration system jeopardizes American security.”

And finally, the Cato Institute’s Alex Nowrasteh puts the whole foreign-born terrorism problem in context:

[Between 1975 and 2015], the chance of an American being murdered by a foreign-born terrorist was 1 in 3,609,709 a year. The chance of an American being killed in a terrorist attack committed by a refugee was 1 in 3.64 billion a year. The annual chance of being murdered by somebody other than a foreign-born terrorist was 252.9 times greater than the chance of dying in a terrorist attack committed by a foreign-born terrorist.

So if the Trump travel ban isn’t about terrorism, what is it about? Nativism.

What picks those countries out is that their residents are largely non-white Muslims, and (unlike Saudi Arabia, which is a much larger source of both terrorists and material support for terrorism) the Trump Organization has no business interests there. If you think of America as a white Christian nation, and worry that it’s losing that identity, then you don’t want people coming here from Iran, Libya, Somalia, Sudan, Syria or Yemen.

If you’re also against letting in brown-skinned Spanish-speakers from Mexico or Central America, you’re happy to lump them in with the “foreign-born” as well. That’s all that’s going on here.

The Real Immigration Issue

“Illegal” immigration has always been a red herring. The more fundamental question is whether the United States will continue to be a country dominated by English-speaking white Christians.


When an issue sharply divides America, we tend to avoid discussing our real division, and instead fight proxy wars about side issues. So, for example, our legislatures and our election campaigns seldom engage the real debate about abortion: A large chunk of the country strongly believes that abortion is a difficult decision that a pregnant woman needs to make for herself, possibly in consultation with her husband, parents, friends, and doctors. Another large chunk believes that abortion is a form of murder and so the government should forbid it, possibly punishing the people involved.

But day-to-day, neither of those positions is discussed by our pundits or politicians. Instead, they raise smaller, related issues that they hope will push the battle lines in the direction they want: Should late-term “partial birth” abortions be legal? Should abortion be legal after a fetus has a detectable heartbeat or can experience pain? (And when is that?) Should abortion (or forms of birth control that could result in the loss of a newly-fertilized ovum) be covered under Medicaid or ObamaCare? Such debates are like the occasional shooting wars that erupted out of the Cold War. The underlying struggle — the U.S. vs. the U.S.S.R. — always stayed under wraps, while the actual battles were fought in Korea or Vietnam or Angola.

For a long time, something similar has been going on with regard to immigration. Anti-immigration politicians and pundits want to talk about “illegal” immigration: the people (usually estimated to number around 11 million) who live in the U.S. without official permission. Some sneaked across one of our borders and have never had any legal status, while an almost equal number came through our ports-of-entry legally as tourists and then overstayed their visas. But however they got here, the anti-immigration folks say, they should leave. It’s nothing personal or racial; it’s just about the rule of law and maintaining border security. And even more than the generic undocumented immigrant, they want to talk about criminals like the M-13 gang, the people President Trump primarily blames for the “American carnage” he made the centerpiece of his inaugural speech.

Meanwhile, pro-immigration politicians and pundits want to talk about the Dreamers: undocumented residents who were brought here as children and know no other country. Or about refugees who came (or want to come) from Syria or Haiti or some other country stricken by natural disaster or war. Or Latin American children whose parents sent them away to America rather than see them forced to become either soldiers or prostitutes for local drug gangsters. Whatever your views on immigration in general, pro-immigration voices say, these are human beings in trouble who deserve our compassion.

It’s easy to get drawn into the details of any of these issues, and find yourself listing victims of illegal-immigrant crime, or correcting misconceptions about DACA or the refugee-screening process. But it’s always worthwhile to remember that these aren’t the fundamental issues; these are proxy wars, and the energy behind them comes from somewhere else.

The more important groupings, the U.S/U.S.S.R. of this struggle, look more like this:

  • One side likes living in a multi-cultural society, and believes that America is stronger because it draws ambitious, freedom-loving people from all over the world.
  • The other side sees the U.S. as a white, Christian, English-speaking country. They believe we can tolerate and assimilate a certain number of people who don’t fit that description, but beyond a certain point (and we’re getting well beyond it now) we will lose our national identity.

Occasionally, some comparatively trivial comment draws the line between these two groups very sharply. For example, when the founder of Latinos for Trump said: “My culture is a very dominant culture. It is imposing and it’s causing problems. If you don’t do something about it, you’re going to have taco trucks on every corner.”

The second group knew exactly what he was talking about: The America they grew up in is in danger of being overrun by people who eat differently, speak differently, and probably live totally different lives than they do. “I’m losing my country,” they believe. But the first group responded to the taco-truck vision with something like: “That would be fabulous. I can never find taco truck when I want one.” Or a truck that sells falafels or sushi or samosas.

Unsurprisingly, this is largely a rural/urban split. If you grew up someplace like San Francisco or New York City, being surrounded by people of all colors chattering in all sorts of languages feels normal, and the idea that this represents a threat to the essential identity of America seems absurd. (Whites are already a minority in California. But when I’ve been there, it still feels like America to me.) But if you’re accustomed to living in a small town that has only recently begun to have a sizeable non-white minority, that not-like-us presence can seem dangerous. Who knows what is going on inside those mosques and temples, or what is being discussed in those foreign languages? Maybe they’re insulting us, making fun of us, or plotting some violence against us. How would we know?

The result is a bit perverse: The native-born English-speaking whites who seem to be in the most danger of being overrun by immigrants — the ones in the polyglot cities — are precisely the ones most comfortable with a vision of a multi-cultural future. But those in the least danger are the ones easiest to rile up against Sharia law or M-13 gangsters or taco trucks on every corner.

The Trump administration has consistently put forward policies that reflect the nativist, keep-America-white position. But they  haven’t promoted it openly, hiding instead behind rhetoric about illegal or criminal immigrants. However, look at what they’ve done:

All of these actions are directed at legal immigrants and visitors. They submit (or have submitted) to a legal process, we know who they are, we have a chance to investigate them. We just don’t want them here.

Even with regard to undocumented immigrants, the Trump administration’s actions belie its rhetoric. The rhetoric is all about criminals, “really bad dudes” as Trump has said many times. The reality is quite different. ICE frequently targets undocumented people living otherwise normal lives, supporting families by working exhausting low-wage jobs. This week, ICE launched a nationwide campaign of raids not on drug dens or underworld hangouts, but on 7-Elevens — 98 stores in 17 states. That brown-skinned girl making your Slushie is the threat Trump wants to protect you from.

Unless some deal is reached — and Trump insists on getting a price for this “concession” — the government is going to start deporting Dreamers in March. (Or at least it was, until a court ordered the administration to keep taking renewal applications. “These allegations raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA,” the judge wrote. The administration is obeying the order while it seeks to reverse it on appeal.) There is nothing criminal about Dreamers; the decision ignore the legal immigration process was their parents’, and a felony or significant misdemeanor would make them ineligible. They are no threat to national security or public order. The only reason to expel them is that Americans don’t want them. Or at least some Americans don’t.

We can only hope that Trump’s recent comment about “shithole countries” will shift the immigration debate onto the fundamental issue that is really at its core: Is America a set of ideals that anyone can adopt, or is it an ethnic tribe you need to be born into? Is it about a democratic form of government pledged to defend individual rights? Or is it about being white, speaking English, and loving Jesus?

Because what Trump was questioning at the time were plans for legal immigration from Africa, from Haiti, and from El Salvador. “Why are we having all these people from shithole countries come here? … Why do we need more Haitians?” He then asked why we couldn’t have more immigrants from countries like Norway instead. [1]

It’s not that we have no room left for immigrants, it’s that they’re wrong color. They don’t fit the “ideal American” stereotype many of us carry around in our heads. They make white English-speaking Christians feel like they’re losing their country.

That’s the real issue. It’s the issue Trump’s immigration policy is based on, why his base stands by him. It’s an issue we need to debate, without getting distracted by the red-herring issues of documentation.


[1] In general, people don’t leave their home countries if life is going well there. That applies to most white Americans also. (Consider, for example, the Irish Potato Famine or the pogroms that brought many Eastern European Jews to this country.) It’s also the answer to Trump’s question about bringing in more Norwegians: Life is good in Norway, so few of them want to come here.