Militarizing Crimmigration

Guest post by Juliet Stumpf, Professor of Law chair at Lewis & Clark Law School.

Donald Trump ran for election, and won, on the strength of his promises to close the U.S.-Mexican border, and to implement mass detention and deportation. These promises are not new. But the tools that he plans to use to accomplish those promises are. And those who will be tasked with fulfilling those goals have had four years to think about how to accomplish them. What are those promises, and how does the Trump administration plan to carry them out?

Mass deportation involves two steps: expanding the pool of deportable people, and detaining and expelling them en masse. First, the incoming Trump administration will expand the number of people in the United States who are at risk of detention and deportation. Currently, about 11 million people are in the United States without authorization. Trump’s plans would increase this group by ending longstanding programs that have protected millions of people from expulsion. He has pledged to end DACA, the Deferred Action for Childhood Arrivals program that protects about 600,000 people who arrived as children and have grown up in the United States but who do not have stable immigration status. His administration will attempt to end Temporary Protected Status, which prevents deportation of a country’s nationals when conditions in their country of origin prevent those nationals from returning safely. Terminating all of the Temporary Protected Status programs would cast about 700,000 people into undocumented status. Similarly, ending humanitarian parole and closing off access to asylum would impact thousands of people within U.S. borders. Countless would slip from precarious status to unlawful presence.

Throughout his campaigns, Trump has used the dog whistle of race when calling for immigration restrictions, from his denigration of Mexicans in his first campaign to spreading false rumors about pet-eating Haitians in his second round. It is no surprise, then, that these proposed actions have clear racial impacts. The U.S. immigration system offers Europeans and those of European descent easier access to more stable, long-term immigration status than those from other regions, so the more precarious levels of immigration status tend to be inhabited by noncitizens of color, from formerly colonized nations.

Migration to the United States, however, will not end when Trump takes office. When people cannot stay where they are, they move. People will continue to flee from unsafe and untenable conditions and from persecution. Asylum seekers and refugees will continue to arrive at the border, and many will cross into the United States. What will change is the level of state-induced violence that the United States will sanction to try to stem that movement.

Trump’s goals are mostly echoes from his last administration, and most achieved only partial success then. The United States already has a system of mass detention and deportation, so this goal can only expand on the status quo. Some of the reasons that caused these goals to fall short was a combination of legal challenges based on statutory and constitutional limitations, and a network of sanctuary policies on the state and local levels that prevented the administration from tasking criminal law enforcement with administrative immigration duties. And the family separation crisis resulting from criminal prosecution of parents for unlawful entry led to a public outcry and backtracking from the mass prosecution of immigrant parents.

What is new is Trump’s pronouncement that he will use the military to enforce administrative immigration law. One of America’s strongest traditions has been the separation between civilian law enforcement and its military forces. This promise may merely be fearmongering. More likely, its serves as a substitute for the frustrated attempt to federalize state and local law-enforcement officials for immigration goals. Others have begun to analyze whether a Trump administration could employ the National Guard or the armed forces either at the border or in the interior to arrest and deport people suspected of immigration violations. In 1954, Operation Wetback deported or caused to flee from the United States over one million Mexican and American citizens of Mexican descent. Candidate Trump invoked that stain on American history as a model for militarizing immigration enforcement.

American immigration policy has for decades intermixed criminal and immigration law and policy—crimmigration law—in ways that immigration scholars around the world have detailed and critiqued. Even indirect military support would lead to an integration of the military into this crimmigration control paradigm. Crimmigration has acted like a one-way ratchet, expanding the size and power of immigration policing and the role of police in immigration enforcement. Introducing the military into immigration would add a powerful third leg to the combination of criminal law enforcement and criminalized immigration enforcement.

We have seen this already in a different context. In Portland, Oregon, thousands of protesters took to the streets as part of the Black Lives Matter movement after the murder of George Floyd. At that time, the Trump administration unleashed an elite unit from the U.S. Customs and Border Protection agency. Protestors alleged that government officials wearing camouflage and body armor grabbed them off the streets in unmarked vans. DHS acknowledged its involvement in quelling the protest. The prior administration’s willingness to use these immigration officials and paramilitary tools to repress protestors suggests that there is only a short rhetorical step to using the military for immigration enforcement.

Robust legal challenges to use of the military for domestic law-enforcement may prevent a Trump administration from ordering the military to directly enforce immigration laws through military arrest, detention, or deportation. The United States has a long history, if a checkered one, of reserving military force for foreign conflict and restricting its use for direct law enforcement. What we see on the horizon is an American experiment that combines the trifecta of state authorized violence: criminal policing, policing of administrative immigration violations, and military force. In other words, the incoming administration is proposing to create a form of militarized crimmigration.

Time will tell whether it will succeed. The attempt alone, however, threatens to weaken the boundaries between traditional external use of the armed forces and internal, domestic policing through criminal and immigration officials, and the intersections between them.