Trump’s Flailing Ratchet: From “Bad Hombres” to “Zero Tolerance”

By Amien Kacou*

The Trump administration has made fighting illegal immigration a top law enforcement priority. But, despite the President’s frequent displays of availability bias—if not vicious cynicism—on this issue, it is well-established that immigrants, regardless of legal status or origins, are on average less likely than citizens to commit most crimes. In fact, their presence usually translates to an overall reduction of crime rates in areas where they settle.

Likewise, at the border, though the President conflates all unauthorized entrants with so-called “bad hombres,” his Chief of Staff admits, “the vast majority of the people that move illegally into the United States are not bad people. They’re not criminals. They’re not MS-13.” A minority of unauthorized immigrants still employs human smugglers (partly due to the dearth of legal admission options for asylum seekers, and perhaps soon due to people getting turned away at ports of entry). But we ought not also conflate these smugglers with more functionally violent foreign actors (gangs, terrorists, or human and drug traffickers—keeping in mind that we are dealing, in the first three cases at least, with low range or low frequency threats and ought not be fooled, as a result, into the irrational urge to police “unknown unknowns”).

Attorney General Jeff Sessions may be as pious as President Trump seems wanton in their joint infliction of extremely severe penalties—at almost any price—on unauthorized immigrants, supposedly as necessary to protect the rule of law and prevent an invasion through “open borders,” even if we are nowhere near historic levels of unauthorized immigration. Sober experience and basic logic counsel against such false choices—or slippery-slope fallacies. This country has had a solid tradition of immigrant legalizations, none of which ever triggered a crime wave or public disorder of any sort. On the contrary, our last mass legalization led to further decrease in crime. Critics will retort that repeated legalizations hinder the rule of law at some fundamental level. But the time when Congress needs to reassess the soundness and equity of its laws is not a question of abstract principle; it is ultimately a question of circumstance, including the tragic mismatch between past laws and emerging realities—as sometimes reflected in public opinion.

Besides, there are good, concrete reasons why strict enforcement of the laws is not always the norm. Speed limit enforcement, for instance, is famously non-legalistic (even though speeding kills tens of thousands of people every year). This reflects the fact that, in practice, “law and order” must bend not only to a higher law of scarce administrative resources but also to a higher order of political priorities—if not directly to advance community values, then at least to avoid counterproductive outcomes. Indeed, myopically stringent border and deportation policies of the past and present have produced negative externalities on anti-drug and anti-gang efforts (later cited to justify more deportations and border controls, in a vicious circle). They have also triggered a backlash against their abject, immoral, illegitimate cruelty, from both the public and civil or other political institutions—including courts. Not to mention the community-oriented local law enforcement authorities who, for the same and other pragmatic reasons, have withdrawn their cooperation from federal immigration enforcement activities, in a significant setback to the President’s agenda.

Maybe, despite these facts, the policy case for aggressive immigration enforcement would carry some weight if immigration itself were reasonably presumed to pose some threat to the public—if it carried an inherently dangerous seed, albeit one somehow deeply buried in data noise. For example, imagine population growth held a simple, positive linear relationship with increases in crime. In reality, it does not; but the Trump administration’s immigration policies typically seem to sprout from similar zero-sum axioms (notwithstanding the President and his allies’ surreal personal double-standards). This is manifestly what drives its officials’ legislative proposals to restrict legal immigration in order to restore some imaginary demographic balance, as a “corrective . . . to the lenient policies of the past.” The same can be said of their decision to purge once-celebrated national slogans of immigrant inclusivity, allegedly in order to reaffirm the government’s “commitment . . . to the American people;” or of their willingness to recycle classic fallacies of job scarcity, while “pulling an ‘All Lives Matter’ on DREAMers.”

Repeating “every life matters” (really to say that every citizen’s life matters more) is one slick way Trump allies concoct a convenient moral alibi for peddling clearly false public safety arguments in support of harsh immigration enforcement policies. With this, they aim, crucially, to shift the burden of proof to their critics’ patriotism for failing to rage against any contribution—however accidental—unauthorized immigration might make to any citizen ever getting harmed. Here, it becomes crucial that, “but for“ an unauthorized immigrant’s unlawful presence (or for the support of his or her political “enablers”), any harm he or she causes would likely not have occurred. Immigration hardliners purport to find this contingency so intolerable that it eclipses in their minds virtually all other relevant considerations. Or, as former Trump campaign adviser Roger Stone put it, with more panache: “If one illegal immigrant kills one American citizen, then the system has failed.”

Never mind that “but for” causation is a notoriously deficient, misleading criterion for assigning fault. An intending immigrant’s presence in the U.S., in and of itself, is not a characteristic or otherwise foreseeable factor of homicide. And the fact that such presence is in violation of U.S. immigration laws is essentially coincidental. Imagine, by analogy, that Jill murdered Jack after driving nonstop to the location of her violent crime on an expired license or registration (which, like unlawful presence, is a civil administrative violation), or even on a fake license or registration (a more serious crime in many states than the petty misdemeanor of first illegal entry). Would it not seem odd for a politician to initiate a crackdown on expired/fake licenses or registrations by asking us to remember this event? If so, why does it not seem similarly absurd to blame illegal immigration for sporadic unauthorized immigrant crimes?

There is no debate that our government should prioritize our safety and welfare in at least some ways. (We are entitled to some sense of ownership over our country—whether for our past contributions to its assets, for our psychological association with its history, symbols and folklore, or even for the unearned windfall of the accidents of our births and social trajectories in it.) This changes nothing to the fact that even citizenism has moral limits—immigrants, too, have rights; immigration law could never be legitimate if they did not. Indeed, international law protects asylum seekers from refoulement, and the U.S. constitution demands due process in immigration proceedings while guaranteeing equal protection of the laws to all persons in the United States. Federal judges do retain an institutional bias—a rigid conception of national sovereignty—which all-too-often favors sparing the political branches from any meaningful scrutiny over their interpretation and regulation of those requirements. But this tendency is mitigated by other doctrines, such as the “longstanding principle” to resolve persistent ambiguities of immigration laws in favor of immigrants.

Trumpism’s wicked appeal, however, comes precisely from its ever-daring, corrosive rationalization for rejecting those basic principles of justice for all, fueled by ever more bad faith (including officials’ increasingly blatant distortions of relevant facts) and ruthlessness in all areas of immigration policy. From the President profiling and dehumanizing unaccompanied migrant teens in his speeches (with the moral alibi of “honest” inarticulateness or political incorrectness), to his agency heads ordering their officers to forcefully seize young accompanied migrant children from their parents in order to deter unauthorized family entries, without plans to reunite them. One moment, those same agency heads are grabbing adjudicating officers in their ranks, as well as heads of local governments, by their respective organizational collars, threatening the first with retaliatory dismissals and the second with criminal prosecutions if they fail to lend a hand in the President’s efforts to reduce access to asylum and immigration of any kind (by arbitrary means if necessary). The next moment, the President is calling for a policy of instant deportations of all undocumented persons at the border “with no Judges or Court Cases.”

As it often has, racial bias—whether overt, concealed, or ironicized—provides a deeply plausible complementary explanation for why Trumpists find in the field of immigration such free and fertile ground to give substance to their quarrelsome, offensive politics (where “zero tolerance”—extreme intolerance—is the ideal culmination of an escalating process of strategic field polarization). But hijacking the presumed privileges of citizenship attracts a larger range of voters and is less obviously objectionable than directly going to bat for White privilege; so long as patriotism remains “gospel,” so to speak, many people will remain vulnerable to erring from citizenism (“citizens first”) to zero-sumism (“only citizen lives matter”).

Roger Stone’s apocalyptic take on rare incidents of unauthorized immigrants killing citizens illustrates the perverse interaction between these various types of social—or antisocial—bias. It contrasts notably with the way he downplays (like former Trump strategist Steve Bannon) White supremacists as a mere aberration, a virtually nonexistent threat, despite Dylan Roof and, later, Charlottesville. Stone suggests this discriminatory treatment (supporting a collective crackdown on unauthorized immigrants for harms caused by a minority among them, while treating violent White supremacists as outliers) is justified by comparing the two groups’ crime volumes. Yet this suggestion is nonsensical, since both populations are clearly incommensurate with one another, in terms of both membership numbers and elementary facts of moral decency. (We ought not to have to spell out the latter: the vast majority of unauthorized immigrants breaks immigration laws to join their families, find jobs, or request humanitarian protection; the totality of White supremacists, by definition, seeks the subjugation, cleansing, or annihilation, of their fellow human beings.)

Above all, this form of thinking is self-fulfilling; it encourages further criminalizing immigration. In fact, since at least the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, U.S. immigration has become hyper-criminalized. Not only has the range of minor crimes for which legal immigrants can be deported been expanded; relatively benign violations like illegal entry are now being criminally prosecuted with brutal disregard to the circumstances of and the consequences to the defendants and their families. In addition, immigration authorities routinely tag the “criminal alien” trope on unauthorized immigrants who are simply arrested but have not been convicted of any crime. And criminal enforcement tools are being turned on civil immigration violators without also granting them the statutes of limitations, procedural benefits and rehabilitative or restorative opportunities which actual violent offenders are normally—and appropriately—afforded.

But perhaps this administration’s increasingly spectacular abuses of power—whether mitigated or aggravated by its ineptitude—might trigger just enough backlash to inspire a legislative re-decriminalization of irregular border crossings, especially by asylum seekers (who, after all, are fleeing persecution by the most rudimentary means, not leisurely touring their way to the nearest port of entry). At a more nuanced level, there might be no better time to reexamine the unquestioned policy presuppositions that supported the last legislative push for “crimmigration”—like the notion that public safety is well-served by deporting most categories of immigrants who have been convicted of serious crimes but have purged their full criminal sentences or been out on probation. Specifically, the outrageous success of Trumpism might, counterintuitively, justify asking again when deporting people to avoid the potential social risks and costs of reinsertion or of failed rehabilitation, for example, is really a legitimate consequence of their lacking the acceptable privileges of citizenship.

More fundamentally, fighting the spread and escalation of Trump’s particular strain of aggrieved anti-immigrant prejudice, on all fronts, will require not merely citing data and exposing purported policy rationales (like “public safety”) as pretexts, but also offering a rejuvenated pro-immigrant counternarrative. Perhaps we need a new ideology, interweaving a reaffirmation of the American constitutional creed with a deeper recognition of the nature of immigration, broadly construed, as an a priori prosocial act (quite unlike the acts underlying prototypical crimes like killing and stealing, which are facially antisocial—though they may be judged otherwise under mitigating circumstances). While acknowledging the need for maintaining order in foreign entries and immigration (for mostly practical, procedural purposes), we also need to promote a stronger sense of what makes empathy with irregular migrants possible (and, eventually, just): the recognition that they are, at bottom, on a largely desperate quest for social integration—at yet another point in this country’s long and uneven history of civil rights.

*Amien Kacou is a Staff Attorney at the American Civil Liberties Union of Florida focusing on immigrants’ rights.

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