Thursday, February 23, 2017

Jacksonian Authoritarianism in Action

Trump's notion of limitless executive authority has been pretty clear for a while now. His attacks on judges who ruled against him are a clue, for starters. The Trump administration actually argued in court that his executive orders are not subject to judicial review, and in a comment that would make David Addington blush Stephen Miller asserted that "The president's powers here are beyond question."

Obviously, the courts disagree. But now we're seeing the strategy for getting around the judiciary: make it irrelevant to the practical result.

The other day the DHS released revised guidelines for immigration enforcement:
It can take years after an immigrant is apprehended for that immigrant to get deported, because immigration courts are massively backlogged. The executive order signed by President Trump lays out a possible solution: sending people back “to the territory from which they came” while their cases are still pending in immigration court.

Basically, it’s a “deport first and ask questions later” strategy.

Under Kelly’s memo, immigration officials would use the “deport-first” strategy for any immigrant apprehended crossing the border who they didn’t think was likely to try to cross illegally again. And the memo directs DHS, as well as the Department of Justice, which runs the immigration courts, to increase its capacity to hear deportation cases over videoconference. That way it can hear cases of people after they’ve been sent back.
The Hill has more details:
For the first time, agents in the interior of the country will be allowed to start expedited removal proceedings for immigrants who cannot prove they have been in the country for more than two years. The process does not require a court order.

That power was previously restricted to officers within 100 miles of U.S. borders, so they could quickly detain and remove immigrants as they entered the country.

“The memo contemplates a massive expansion of people being removed from the country without ever seeing the inside of a courtroom,” said Tom Jawetz, vice president of immigration policy at the liberal Center for American Progress....
The rationale for this:
Immigration enforcement agents felt hampered by Obama’s guidelines, Spicer said.

Trump “wanted to take the shackles off individuals in these agencies and say, you have a mission, there are laws that need to be followed.”
I'll let Detective Vargas respond to that one:
We saw the beginnings of this approach right after the first executive order, when CBP agents were simply ignoring court orders requiring them to observe due process. What the DHS proposes is essentially the same thing on a mass scale. For most people who get deported without due process, it won't matter what the courts ultimately say; the damage will have been done.

A judge can order you not to break a glass. A judge can sanction you if you break it anyway. But a judge can't put the pieces back together.

That's the calculation Trump (or Bannon/Miller) is making on immigration. Expect to see the same approach applied across the board, on everything from regulatory (non-)enforcement to sabotaging the ACA. This is their blueprint for an executive branch operating effectively outside the bounds of judicial review.

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