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Outgoing Trump Team Scurries to Extend Anti-Immigrant Policies

These desperate DHS maneuverings could take the new administration some time to unwind.
January 19, 2021
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May 16, 2019. - Trump proposed an overhaul of US immigration to favour applicants with high skills and good English, while cutting back on family based arrivals and asylum seekers. (Photo by Brendan Smialowski / AFP) (Photo credit should read BRENDAN SMIALOWSKI/AFP via Getty Images)

On its way out the door, the Trump administration has been scheming to extend the lifespan of some of the defeated president’s least-popular immigration policies.

Many of Trump’s immigration initiatives have been blocked because his Department of Homeland Security cannot seem to follow the law (irony alert). Now, Trump’s new acting secretary of Homeland Security, who was appointed just last week, is attempting an end-run around proper legal procedure to keep some of these unpopular polices in place.

Some background: Ever since Kirstjen Nielsen stepped down as secretary of DHS in April 2019, there has been no Senate-confirmed secretary. Kevin McAleenan served as acting secretary for seven months, and then Chad Wolf as acting secretary for fourteen months until his resignation last week. However, the Government Accountability Office confirmed last August, and five federal courts also confirmed (most recently last week), that Wolf’s appointment to head DHS was improper under the law governing vacancies in high-level federal positions. The same was true of Wolf’s predecessor, McAleenan, and Wolf’s deputy, Ken Cuccinelli. Which means that many of the immigration policies issued by DHS since April 2019 have been illegitimate, and the enforcement of some of them has been explicitly blocked by courts.

Hence Chad Wolf’s resignation last week. Unlike other Trump administration officials who made a point of resigning because of the president’s actions leading to the mob attack on the U.S. Capitol, Wolf resigned as part of a legal shell game. Following Wolf’s resignation, Pete Gaynor—the Senate-confirmed head of FEMA—has become the new acting secretary of DHS.

One of Gaynor’s first actions was to issue a memo delegating to Wolf—who is still at DHS in his Senate-confirmed role as under secretary for strategy, policy and plans—the power of the secretary to approve regulatory rules, including the power “to ratify any prior regulatory actions of the Department of Homeland Security.”

Unsurprisingly, Wolf hastily proceeded to use this power to ratify some of the rules that were put into place unlawfully during his and McAleenan’s tenures as acting secretary. DHS is going so far as to sign agreements with some states that gives them six months to review and submit comments before the Biden administration implements shifts in policy.

These ploys may slow down the incoming administration’s efforts. For one, it will take some time to confirm Alejandro Mayorkas, Biden’s nominee for DHS secretary. Confirmation hearings for Barack Obama’s and Donald Trump’s first DHS secretaries were held during the lame-duck period but, breaking with precedent, the Senate has held no advance confirmation hearings for Biden nominees. And the historic second impeachment trial for Trump is likely to slow the confirmation process even further.

Once Mayorkas is confirmed, unwinding the damage done by Trump and his immigration czar Stephen Miller will take time. Due to repeated violations of the Administrative Procedure Act (APA), and the emphasis on it placed by the judiciary, most notably on DACA, there will be little to nothing that can be done immediately. Instead, the APA will require that proper notices be given and time for public comment is taken. It turns out doing things properly takes time.

The bright spot is that the last-gasp schemes occur in the face of consistent voter repudiation of Trump’s immigration policies.

Evidence of Americans’ support for immigration is as robust as ever and cuts across party lines. In a Gallup survey conducted early last summer, the percentage of respondents who said they believe immigration benefits the country reached a record high (77 percent), and more respondents said they support an increase in immigration than in any previous Gallup survey over the last 55 years. A Pew poll of registered voters from last summer found that 60 percent believe that increasing immigration strengthens American society. While that figure was lower among Trump supporters, even for them it rose by 13 percentage points since 2016, suggesting that even many of Trump’s supporters were not persuaded by his demonization of immigrants.

Meanwhile, a remarkable 69 percent of 2016 Trump voters are in favor of protecting Dreamers, according to a Morning Consult poll from last June. Even more damaging to Trump and Miller’s machinations, in a poll of voters conducted on election night 65 percent of respondents—including a majority of Republicans and of white evangelical Protestants—said they oppose Trump’s destructive family separation policies. Dreamers, after all, have not broken any law and punitive measures against them are counterproductive at best.

The support for sound immigration policy is astonishing in the face of Trump’s four-year assault on all migrants, including those who arrive legally or intend to ask for asylum—also fully permissible under U.S. law. Miller ushered in over 400 changes to legal immigration, further complicating the bureaucratic nightmare of a process that damages the country.

Trump and Miller’s political losses on immigration have been ongoing. Back in the 2018 mid-term elections, Trump’s policies took a beating at the ballot box and many Republicans were swept out of office. Notable immigration restrictionists, some with long histories of race-baiting attacks on aspiring American communities, like Dave Brat, Kris Kobach, Lou Barletta, and Corey Stewart were among the losers, most by wide margins.

And in the 2020 elections, restrictionists like Jeff Sessions—whom the Department of Justice’s inspector general recently confirmed was the driving force behind the premeditated Trump/Miller plan to purposefully and forcibly separate children from their families—and Kris Kobach again lost. Neither survived primaries. (In Kobach’s case, he was called out for his “ties to white nationalists” and his employment by the anti-immigrant group Federation for American Immigration Reform and connections to its sister groups in the Tanton network.)

Republicans who have not rejected legal immigration, like Susan Collins, Thom Tillis, and Lindsey Graham outperformed expectations in 2020, whereas restrictionists like David Perdue underperformed.

Then, of course, there is the president’s own election loss. The polling mentioned above also shows that Trump’s positions on immigration hurt him with independent men and suburban women, two key parts of his 2016 electoral victory.

The picture that emerges from these various data points is one of a country transformed by years of Trump—but not in the direction he wanted. It is a country that has heard the nativist, xenophobic rhetoric of Trump and his lieutenants and allies, and has seen the ugly images resulting from Trump’s immigration policies. The maneuvers by Gaynor and others in the waning moments of Trump’s presidency may succeed in slowing down whatever policy changes may be forthcoming, but they won’t change that the American people favor a more welcoming, less hateful approach.

Mario H. Lopez

Mario H. Lopez is president of the Hispanic Leadership Fund, a nonpartisan public policy advocacy organization that advances liberty, opportunity, and prosperity for all.

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