President Trump issued three more executive orders on Thursday, this time focusing his attention squarely on crime. Immigration occupies a central position in this latest EO trilogy, illustrating the Trump Administration’s immigration mindset.
I printed the orders at random and didn’t make it through the first section before “illegal immigration” made an appearance. The EO titled “Task Force on Crime Reduction and Public Safety” states that it is the Trump Administration’s policy to “enforc[e] the law and develop policies that comprehensively address illegal immigration, drug trafficking, and violent crime.” § 1. Linking these three categories implies moral equivalence. Indeed, the Task Force ordered by the EO is instructed to “exchange information and ideas…useful…to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime.” § 2(c)(i).
What is especially interesting is that federal agencies already share enormous amounts of data. Plenty of data also goes from state agencies to federal agencies and vice versa. Whoever wrote this section of the order seems not to know this. Or, to be more charitable, they do know and are looking to score political points among people who don’t know that interagency cooperation has been the norm for decades.
Putting aside that information exchange isn’t new, might the newfound emphasis on information exchange lead to recommendations to “define new Federal crimes,” an explicit instruction of EO “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers,” targeting migration? There is no mistaking that this EO takes aim principally at the Black Lives Matter movement. In instructing the Attorney General to coordinate efforts to “prosecut[e] crimes of violence against Federal, State, tribal, and local law enforcement officers,” the EO leaves open the possibility that the Justice Department and Republican members of Congress will set their eyes on individuals who have confrontations with Border Patrol and ICE officers.
In particular, the political right has long concerned itself with incidents in which rocks are thrown at Border Patrol agents. The formerly-fringe rightwing mouthpiece Brietbart News covers such incidents regularly. Just Wednesday, in fact, Brietbart announced that a Border Patrol agent was “assaulted by people on the Mexican side…throwing large rocks.” With former Brietbart chairman Stephen Bannon now serving as the president’s chief political strategist, it strikes me as not much of a stretch to think these incidents are front-and-center in the minds of White House thought leaders. In addition, as a candidate and since taking office, President Trump has made much of receiving the Border Patrol union’s endorsement. Not surprisingly, the union has a strong position on rock-throwing incidents. When agent Lonnie Swartz was criminally prosecuted after killing a teenager who, according to the Border Patrol, was involved in throwing rocks at agent Swartz, the union provided Swartz with legal counsel and issued a strongly-worded statement about “political agendas and armchair quarterbacking.” Concerns by Border Patrol officers and Brietbart followers are only likely to increase in the coming weeks. On February 21, the Supreme Court is scheduled to hear oral argument in a case involving a teen who was shot and killed by a Border Patrol agent. When the killing happened, CBP and the FBI claimed that fifteen-year-old Sergio Adrián Hernández Guereca had thrown rocks at the Border Patrol agent. Numerous videos captured on cellphones, including the version below, revealed that not to be true.
Of the three executive orders issued February 9, none is more focused-and yet highly unspecific—on immigration than “Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking.” Picking up where his January 25 executive orders on border policing and interior enforcement left off, President Trump is clearly interested in harnessing the much broader powers that immigration law affords him over traditional criminal law and procedure. The executive order announces a goal of ensuring “swift removal” of migrants who are “members” of “transnational criminal organizations.” § 2. Neither of these phrases is defined; presumably agency guidance will have to provide crucial details. Belying the rhetorical focus on hardened criminals who pose a grave threat to the United States, § 2 makes a quick turn toward rather mundane immigration-related activities “such as immigration fraud and visa fraud,” both of which receive priority prosecutorial attention. What that means is anyone’s guess.
Continuing the executive order’s theme of heightened rhetorical attention without much detail, § 3 instructs the Secretaries of Homeland Security and State, along with the Attorney General and Director of National Intelligence to take these crimes seriously—so much so that they should “review relevant Federal laws to determine existing ways in which to identify, interdict, and disrupt…transnational criminal organizations.” Part of that work should involve “ascertain[ing] which statutory authorities, including provisions under the Immigration and Nationality Act, could be better enforced or amended to prevent” members “from obtaining entry into the United States and exploiting the United States immigration system.” § 3(f). What this means precisely is beyond me. The various federal agencies responsible for policing migration—CBP, USCIS, and State—already closely examine applicants for admission for signs of criminal pasts. Current law gives them plenty of room to deny admission to most people with a criminal blemish. (For the sake of accuracy, I’ll point out that the critical legal requirement under current immigration law isn’t “entry” into the United States; it’s “admission.”)
However the details shake out, the crime-focused executive orders leave a clear impression that the Trump Administration continues to embrace the myth of migrant criminality that pervades the January 25 executive orders and that propelled Trump into the presidency.