Trump scores a bipartisan win on immigration

Will it be his last?

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Congress just passed its first piece of legislation of Donald Trump’s second term, and it did so in a surprising way - with bipartisan support. The Laken Riley Act is the most controversial piece of immigration legislation to be passed by Congress in decades, but that didn’t stop dozens of Democrats from crossing the aisle and delivering a win for the new administration. Why they did it tells us something about immigration politics in the Trump era, even as the bill itself highlights how difficult it will be for Trump to achieve anything like “mass deportation”.

Laken Riley was a 22 year old nursing student in Georgia who was attacked and killed while out jogging early last year. Her killer was a Venezuelan man who had crossed the border without authorization and had no criminal record, but who had once been arrested for shoplifting and then not charged. Although immigrants commit crimes at lower rates than people born in the United States and very few shoplifters go on to commit murder, proponents of the Laken Riley Act argue that immigration authorities should be deporting anyone who has even been arrested for theft, regardless of whether they actually committed the crime or not.

Of course, immigration hard-liners would like to deport everyone illegally present in the United States. But because there are over ten million such undocumented people, Immigration and Customs Enforcement (ICE) in reality always focus their limited resources on certain priority groups.

Most people can agree that an undocumented person who committed murder or rape should be deported, so that’s an easy priority. Beyond that, things get trickier. Focusing on all criminals is way too broad - then ICE might end up deporting an 80-year-old grandfather who drove his car without a licence, something typically not considered a great use of its resources. Administrations tend then to target different sub-groups of convicted criminals - for the Biden administration, it was people convicted of felons and gang members.

With the Laken Riley Act, Congress is inserting itself directly into this question of enforcement priorities in an unusual way. By ordering that ICE detain all undocumented persons accused of theft, it is removing a great deal of discretion from the agency and indeed from the president. From now on, ICE is going to have to focus on this class of people. The act even allows individual states to sue the federal government if ICE isn’t showing up to deport every undocumented person accused of theft.

This creates a huge resource problem for ICE, and makes a mockery of Trump’s claim that he can carry out “mass deportation” with current resources. ICE estimates that implementing the act would require the agency to more than double its budget and triple its detention capacity. It’s in no way clear that Congress will actually grant the agency these new resources.

And those are just the cash and cells required to deport the roughly 110,000 people covered by the act. Imagine, then, the resources require to deport ten million.

The fact that the act looks impossible to implement brings us back to the question of why on earth Democrats would vote for it. But there’s also a more serious problem with it, which is the fact that the act targets people who have merely been arrested. The legal bar for an arrest is much lower than for for indictment or conviction, and the process is also much more open to abuse. Local police could start arresting people on incidental circumstances and then hand them over for deportation. Even without malign intent, someone could easily get wrongly accused - say if they were in a store when a shoplifting occurred - and then have their whole life destroyed as a result.

That such a large number of Democrats were willing to back this bill tells us that immigration politics is changing. A large number of Democratic members of Congress have come to believe that the party is badly out of step with the public on immigration, something which seems to be borne out by opinion polls. The “Overton window” - the range of political positions seen as broadly acceptable - is shifting to the right, and Democrats are trying to catch up.

The process actually began early last year, when many Democrats supported a Biden administration bill to dramatically increase border security. Trump killed that bill because he wanted to be able to use immigration as a cudgel against Democrats in the election. Now that he has successfully done that, many Democrats are even more worried about being associated with too much immigration - so now they’ve backed the Laken Riley Act.

On the other hand, I don’t think this means that Democrats will be lining up to support other parts of Trump’s immigration agenda. Many of the swing-district senators and representatives who voted for this bill probably view it as a type of protective inoculation against being forced to agree to more extreme measures. It gives them some political cover when they start resisting mass deportation. And by tying ICE down with a mandate that is already unenforceable and inhumane, they might hope that the ludicrousness of rounding up ten million people will become more apparent.

That doesn’t change the fact that it’s a bad law, wide open to abuse, and a sign that the politics of immigration has shifted far to the right. Trump won’t get his “mass deportation”, but his next moves will still be extreme and inhumane - and he probably won’t even need Democratic votes to enact them.

Thanks for reading America Explained. This post is free. If you haven’t already, please consider upgrading to a paid subscription, which allows you to read every post and access the full archive. Right now we have an Inauguration Week sale, with 20% off until the end of the week. Upgrading to paid enables me to put more time and energy into this newsletter, something that I’m hoping to do in order to cover the new administration more thoroughly. If you’re already a paid subscriber, thanks for supporting independent media and making it possible to do what I do.

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