Executive Power Essay 130 Harv. L. Rev. F. 243

Immigration and the Bully Pulpit


One evening in early February, I sat in a nondescript hall in a local community center in a Southern California city. This city is over seventy-five percent Latino, and a sizable population of unauthorized immigrants live and work alongside U.S. citizens here. In addition to inflicting widespread emotional pain, full enforcement of the nation’s immigration laws would hurt the local housing market and general economy, with inevitable ripple effects throughout the regional and state economies. Immigrants, whether lawfully present or not, are a critical part of the lifeblood of the community.

The topic of discussion on that February evening was immigration enforcement. Many concerned members of the audience asked questions about how the incoming Trump Administration’s immigration policies would affect not only them, but also their families and the communities they served as educators, health care providers, and local business owners and workers. The evening was full of poignant moments, but one remark by a young immigration activist struck me as singularly important: “We are glad that you are here,” he said to the assembled crowd, “but we felt so alone during the Obama years.”

In recent weeks, the media has focused on the mood of terror in immigrant communities.1 These accounts explain this terror as a reaction to the evolving immigration enforcement policies of President Donald J. Trump. Professor Peter Markowitz, who directs an immigration law clinic at Cardozo Law School in New York, uttered a common refrain when he noted: “I have never seen the level of panic that is gripping our immigrant communities. Fielding a deluge of calls from panicked immigrants is now a regular part of my day, as it is for immigrant advocates across the city and across the nation.”2

Long before he was President, Trump intentionally stoked these fears. Throughout his campaign, he made no secret of his desire to upend what he clearly perceived as failed administrative practices around immigration enforcement.3 Upon election, President Trump spent his first four weeks in office rolling out immigration enforcement policies with a great deal more fervor than competence.4 The worried reactions to these events are real and understandable.

The current focus on this cresting wave of terror, however, obscures an important reality that was captured by the young adult in the community center in Southern California. The fear experienced by immigrants in the United States did not start with Trump. The policies that President Trump has espoused and the resulting concern of affected communities have deep roots in the past. Old laws and policies have generated the vulnerabilities that the Trump Administration now seeks to exploit. Understanding the Trump Administration’s emerging immigration policies and the reactions to them therefore requires looking backward as well as forward.

This is not to say that President Trump’s immigration enforcement policies should be conflated with those of his predecessors. His rhetoric of unconstrained severity matters a great deal, and not just because the Administration’s tone fuels a climate of fear.  The words have consequences.  The bombastic enforcement promises, when combined with seeming indifference to certain constitutional rights and administrative realities, have apparently encouraged agents at the lowest administrative levels to exercise their own power in a manner insufficiently constrained by law. Additionally, the new President’s first few weeks in office have reflected a disheartening failure to internalize any of the hard-learned lessons of previous administrations.

This Essay explores President Trump’s emerging immigration enforcement strategies in historical context. It starts with a look back at the “lonely” years of immigrant activism. Part I of this Essay explains the enforcement landscape the Obama Administration inherited and the evolution of that Administration’s own enforcement policies. This Part surveys the lessons learned — and not learned — by the Obama Administration. Part II of this Essay details the new Administration’s enforcement efforts, including the thwarted January 27, 2017 executive order containing the now infamous travel ban on certain foreign nationals and refugees,5 his March 6, 2017 executive order replacing the January ban,6 and the interior immigration enforcement efforts mapped out in two January 25, 2017 orders7 along with their implementing Department of Homeland Security memoranda of February 20, 2017.8 This analysis reveals the extent to which Trump’s policies constitute a doubling-down on some of the least productive approaches to enforcement.

* Professor of Law, U.C. Irvine School of Law. This essay has benefited from long-running conversations with Sameer Ashar, Susan Coutin, Jonathan Glater, Annie Lai, Stephen Lee, and my students, particularly Melissa Adams, Vanessa Gomez, Liz Paez, and Daniel Werner.

  1. ^ See, e.g., Deepti Hajeli & Amy Taxin, Immigrants Fearing Deportation Under Trump Change Routines, Associated Press News (Feb. 23, 2017), https://www.apnews.com/cdecb058f4a94810af45189bc7c5444a [https://perma.cc/5G3L-R4YE]; Tal Kopan, Democrats, Advocates Question ICE Raids After Hundreds of Arrests, CNN (Feb. 14, 2017), http://www.cnn.com/2017/02/10/politics/democrats-question-ice-enforcement-raids/ [https://perma.cc/NZ5D-8HPR]; Joe Mozingo et al., “I Can See the Fear”: Multicultural Los Angeles Senses a Different World Under Trump, L.A. Times (Feb. 2, 2017), http://www.latimes.com/local/california/la-me-ln-los-angeles-immigration-ban-react-20170131-story.html [https://perma.cc/8YMP-NSPW]; Anabel Munoz, Local Immigrants Fear Separation from Families, Deportation Under New Administration, ABC7 (Feb. 10, 2017), http://abc7.com/news/immigrant-families-fear-separation-deportations-under-new-Administration/1747796/ [https://perma.cc/4ZSW-66TQ]; Ray Sanchez, After ICE Arrests, Fear Spreads Among Undocumented Immigrants, CNN (Feb. 12, 2017), http://www.cnn.com/2017/02/11/politics/immigration-roundups-community-fear/ [https://perma.cc/R2LT-L4DT].

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  2. ^ Peter L. Markowitz, Understanding What Makes Trump’s Immigration Orders Truly Chilling, N.Y. Daily News (Feb. 24, 2017), http://www.nydailynews.com/opinion/trump-chilling-immigration-orders-article-1.2981758 [https://perma.cc/A2GC-P26T].

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  3. ^ Domenico Montanaro et al., Fact Check: Donald Trump’s Speech on Immigration, NPR (Aug. 31, 2016, 9:44 PM), http://www.npr.org/2016/08/31/492096565/fact-check-donald-trumps-speech-on-immigration [https://perma.cc/6VKV-WQNV].

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  4. ^ See discussion infra Part II.

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  5. ^ Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) [hereinafter Ban E.O. I].

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  6. ^ Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) [hereinafter Ban E.O. II].  

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  7. ^ Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017) [hereinafter Border Enforcement E.O.]; Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) [hereinafter Interior Enforcement E.O.].

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  8. ^ Memorandum from John Kelly, Sec’y, Dep’t of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs & Border Prot. et al. (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf [https://perma.cc/BY5F-L56V] [hereinafter Kelly Enforcement Memo].

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