Immigration and Customs Enforcement (ICE) was created in the panicked days after 9/11 to enhance national security. But its primary purpose has become hunting down and ejecting people whose main "crime" often is that they can't obtain a piece of paper from the government authorizing them to live and work in the United States.
America got along just fine for 225 years before ICE, the monstrous child of the wars on drugs and terrorism, was spawned. It can do so again.
After 9/11, at the behest of the George W. Bush administration, lawmakers voted to consolidate 22 federal agencies and 170,000 employees under the Department of Homeland Security. The Immigration and Naturalization Service (previously part of the Justice Department) and the U.S. Customs Service (previously part of the Treasury Department) were swept into this newly created behemoth and then re-divided into U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and ICE.
But ensconcing immigration in a department focused on national security resulted in a mentality shift. Immigrants came to be regarded not as friends but as foes—potential terrorists or criminals. (This, even though cities with large immigrant populations have lower crime rates than cities with fewer immigrants.)
To be clear, the criminalization of immigrants long predates 9/11. Bill Clinton got the ball rolling after his senior adviser, Rahm Emanuel, urged him to wrest the crime issue from Republicans by "achiev[ing] record deportations of criminal aliens."
To do that, Clinton dusted off a 1988 law that—borrowing a page from the mandatory minimum sentences that were statutorily imposed on drug crimes in that decade—required the mandatory detention and "expedited removal" of criminal aliens without so much as a hearing or any consideration of circumstances.
Before that point, "criminal aliens" referred to immigrants, whether in the country legally or not, who had committed violent offenses or serious property crimes. But Clinton worked with Congress to pass two more laws—the Illegal Immigrant Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act—to vastly expand the definition of what counts as an "aggravated felony" for which an immigrant may be deported, and to apply it retroactively to crimes committed many years ago. Murder and rape were included, of course. But so were misdemeanors such as minor drug possession, driving under the influence, and illegal re-entry.
In effect, Clinton created a two-track justice system—one for immigrants and one for citizens.
All of this meant that when ICE was created, it already had sweeping legal powers to engage in mass deportations. Yet only under Barack Obama did it acquire the capacity to do so as well. Indeed, as Marisa Franco and Carlos Garcia put it in a 2016 article for The Nation, instead of "reversing" the deportation architecture he inherited, the 44th president "turbocharged it." According to Detention Watch Network, the annual detained population soared to 363,000 in 2010, a 500 percent increase since 1996. Thanks to ICE and its sister agencies, Uncle Sam now spends more on immigration enforcement than on the FBI, the Secret Service, the Drug Enforcement Administration, and all other federal criminal law enforcement agencies, combined.
On Obama's watch, Congress mandated the maintenance of 34,000 detention beds daily, which ICE has interpreted as a requirement to hold at least that many immigrants at all times. It also appropriated funds to create a sprawling nationwide complex of over 200 detention warehouses, contractually guaranteeing operators a minimum "lockup quota" payment to protect their bottom lines. Coupled with a lack of oversight and an erosion of due process rights for those in the agency's charge, this has resulted in abysmal living conditions and even abuse. An April Intercept investigation found 1,224 formal, documented complaints of sexual assault in ICE detention centers between 2010 and 2017, half of them by ICE agents themselves.
Obama apologists argue that the Republican-controlled Congress is to blame for these developments. But Obama actually expanded the Bush-era Secure Communities program, which enlisted municipal governments into the business of immigration enforcement by having them check the fingerprints of every person they detain against federal databases to determine if he or she is here legally. (Under Bush, just 14 counties were involved in the program; by 2014, it was active in some 3,181 jurisdictions.)
Obama eventually discontinued Secure Communities after complaints of widespread racial profiling and other problems. Trump has had no similar compunction. His threats to defund so-called sanctuary cities and target them with enforcement actions are calculated to pressure them to rejoin the program. He also restarted the notorious 287(g) program, which gives communities a financial incentive to assist federal immigration enforcement activity, effectively turning local police into ICE agents.
What's more, the 45th president is eroding institutional norms that used to temper how ICE agents deployed their awesome deportation powers and machinery. In a particularly disturbing recent development, Homeland Security, ICE's parent agency, has taken to separating kids from parents seeking refugee status at the border in order to deter families from trying to enter. According to a New York Times investigation, approximately 700 children have been handed over to shelters and given little to no access to their parents as their cases wend through the bureaucracy.
No previous administration has targeted immigrants in sensitive locations such as hospitals, but Trump's agents have gone after aliens in almost every conceivable venue, from schools in New Jersey and courthouses in New York to a surgery ward in Texas and just outside a church in Arizona. Hospitals in Los Angeles are now training their staffs to handle ICE raids just as they do active shooters and earthquakes. Medical professionals are preparing to form a three-layer human chain in an attempt to stop ICE from hauling away undocumented patients.
Whereas ICE used to limit enforcement actions to those falling within the "criminal alien" category, now anyone without proper documents or with a minor infraction on his record is fair game for deportation—even otherwise model residents who have lived in America for years and developed deep roots. A green card–holding Polish doctor and father of two who has been here for four decades is fighting deportation for a misdemeanor conviction he received in high school.
"You should look over your shoulder and you need to be worried," Acting Director Thomas Homan declared during congressional testimony last June.
True to its word, the agency is sparing no one. Undocumented parents with American kids are not off limits. In spite of a directive from Defense Secretary James Mattis to leave veterans alone, the agency is seeking removal proceedings against a Chinese immigrant who was honorably discharged from the U.S. Army. Agents are even going after victims of domestic violence who try to file police reports.
Much of this was hardly imaginable two years ago, and there's every reason to believe the problem will continue to get worse. But there is no need for a dedicated entity that only goes after immigrants in the first place. The 1980 Libertarian Party platform demanded the abolition of several of ICE's less draconian predecessor agencies. It's time to renew that call. Regular law enforcement can handle the truly bad hombres. Congress should dismantle ICE and thoughtfully reassign its legitimate functions.
Except for capital punishment, a government has no more awesome a power than to pluck people from their homes, tear them away from their loved ones, and send them into exile. President Trump identified 22 agencies for elimination in his budget. Most of them represent the soft tyranny of the administrative state. ICE embodies the hard tyranny of the police state.
It deserves to go.
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