After The ICE Thaws

Earlier this year, President Trump effected a policy change that has had massive social and political ramifications — more so than usual.

Trump directed Border Patrol to detain all unauthorized immigrants for prosecution rather than to detain them in order to determine their immigration status. But prosecution implies criminality, and for those immigrants who come with their families, with their children, they cannot be kept together once the destination is federal jail rather than an immigration detention center.

The goal, all along, was a smashmouth enforcement protocol to make families south of the border think twice about coming here illegally or asking for asylum. Conceiving of the policy as a “deterrent,” some administration officials and Trump supporters pointed to indications that the new policy was working.

Earlier this month, Trump signed an executive order to reverse this aspect of his border policy, but given that the order protects families from separation for only 20 days, the status of this administration’s directives remain uncertain.

One result from all this is we get a clearer picture of what immigration policy looked like before Trump got into office. Many stories and pictures that critics of this administration brought forward to condemn it actually turned out to pre-date it. This was then used by supporters of the administration to suggest moral equivalence and to charge critics with partisan-fueled hypocrisy, the gravest of all political sins.

The situations, of course, were not at all equivalent. While the Trump administration was creating a wave of unaccompanied children, the Obama administration was largely responding to a spontaneous one that resulted, at most, from a misunderstanding of policy. It’s easier to have patience with an administration that’s responding in good faith than one that is actively pulling families apart.

While some on the left may have been hypocritical in their response to the revelations about the Obama administration’s handling of the issue, others were more nuanced, and in fact some were perfectly willing to throw the Obama administration (as well as the Clinton administration) under the bus. Some of this is opportunistic — the benefits of condemning the current administration outweigh the costs of defending past ones — but a lot of it represents either a denial of what enforcement often becomes even with good intentions, or a rejection of enforcement altogether.

Enter #AbolishICE, the hashtag campaign devoted to getting rid of Immigration and Customs Enforcement, the agency tasked with interior enforcement of immigration laws.

For border hawks, this idea is tantamount to pushing for “open borders” — though, conceptually, ICE and border enforcement are distinct operations. The border is defended by Customs and Border Protection, a separate entity.

Some #AbolishICE-ers like to point out that ICE has only existed since 2003, so of course there can be enforcement without it.

Prior to ICE, we had the Immigration and Naturalization Service (INS), which took on a more comprehensive executive portfolio that included the functions of the ICE, CBP, and more under the auspices of the Department of Justice.

Whether this is better or worse than the current setup, with different agencies under the banner of the Department of Homeland Security, is a question very much worth asking.

Is that what #AbolishICE advocates want? An organizational and departmental reshuffling?

It depends on who you ask. And that, in turn, presents the biggest problem with #AbolishICE: so far at least, it has functioned far more like a slogan than like a proposal.

Sean McElwee, the architect of the hashtag, to some degree knows this, and wants the slogan to move the Overton Window. But as we recently learned with “Repeal and Replace,” a slogan doesn’t — a slogan can’t — replace a proposal. McElwee wants everybody to rethink the issue, but to do so would involve going beyond slogan-disseminating and would require getting far clearer on the precise policy changes that are being sought. McElwee has to know that even if ICE is abolished, the administration is capable of transporting its functions to other agencies and to carry out the same work under a different agency.

The good news for liberals and border doves is that the Trump administration overplayed its hand, so politically speaking the administration’s critics have quite a bit of breathing room here to decide what it is that they want to do. The administration’s calculus was that the passion of border hawks and the relative indifference of everyone else made this issue a winner no matter how much glass they broke. But crying children brought out the passion in the other side, a passion that quite simply overwhelmed the border-restrictionist zeal of the White House’s most ardent immigration hardliners.

On the whole, Americans want border enforcement. Liberals may have lost their taste for deportation, but people are at least intermittently fine with deporting the entire family as long as they are kept together. They like DACA but are also skeptical of citizenship for unauthorized immigrants. They’re all over the board, really. But there is no indication that the Overton Window can be casually moved in the direction of non-enforcement even if we’re just talking about the interior.

If Democrats want to do this without paying a severe political price, they’re going to need to sell the public on it. Trump’s awfulness will probably not be enough, nor will slogans, or pictures of kids. What overreach and backlash giveth, overreach and backlash can taketh away.

What Democrats will need to do is produce a plan that does more than simply call for “less enforcement,” or, for “more humane enforcement.” The Republicans will throw the Open Borders accusation around no matter what Democrats come up with, but the response to the accusation matters and needs to involve either a genuine defense of the ideas of open borders or no interior enforcement, or a capacity to outline the differences. And then, once elected, a clear idea of the range of options with the ability to gain enough support to make it happen.

No more ripping screaming children away from their parents is easy. DACA, likewise, is easy. But what about some of the harder questions?

• While unauthorized immigration has abated, do you have a plan for how to handle it?
• Is everybody let go?
• Is anybody deported if they don’t show or should we not worry about it?
• Who are you willing to deport?
• What are you willing to do to identify them?

Underlying this is a broader question of whether this going to be deliberate policy, or doubling down on the no-choice politics that helped land us here to begin with.

The good news for Democrats is that it’s early in the process and the excesses of the Trump administration have likely brought them some leeway. At least two supporters are at least laying out some parameters and while it veers closer to non-enforcement than may be prudent, it’s a starting point. Retweeting #AbolishICE is itself just a starting point. What comes next will be infinitely more important.