As I wrote in my post yesterday (July 21), the law enforcement personnel Trump has deployed on the streets of Portland, Oregon (and has promised to deploy in Chicago, New York and other cities “run by liberal democrats”) come from two sub-agencies within the Department of Homeland Security (DHS): Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). These are two of three new immigration agencies (the third being U.S. Citizenship and Immigration Services, or USCIS) that were created within DHS when it absorbed the former Immigration and Naturalization Service (INS), which had been part of the Department of Justice.
Evident in the very names of these two agencies is the fact that their mandates are to enforce immigration and customs-related laws—both at the border (CBP) and in the interior (ICE) of the United States. So why are two immigration agencies being used to patrol the streets in a city that is not on an international border, and to make arrests having nothing to do with immigration or customs enforcement?
As I mentioned yesterday, I think the main reason is that Trump has been rebuffed in his desire to use the military for these types of operations. So he turned to a politicized agency that, by the way, is already the country’s largest federal law enforcement organization, with more than 60,000 law enforcement officers on its payroll. Moreover, unlike other federal law enforcement agencies—such as the FBI, the DEA or the ATF, which have specific domains of authority defined by federal statute—DHS’s statutory authority includes the discretion to transfer agents from one component of DHS to another. The administration is taking advantage of this loophole to second CBP and ICE officers to the Federal Protective Service (FPS), a federal agency whose job is to protect federal property.
But there is another, more insidious reason why it should not surprise us that Trump is using armed border patrol and other immigration enforcement officers as his storm troopers. As Dina Haynes, Professor at New England Law, writes, “Racist, regressive leaders around the world have been instrumentalizing racism, discrimination, and ‘othering’ to further their nativist goals.” Immigrants were Trump’s first scapegoats, but it’s an easy next step to scapegoat anyone who challenges his authority by suggesting that they, too, are somehow “others” who seek to destroy our country. The administration has been quite successful in instrumentalizing anti-immigrant sentiment to justify expanding administrative authority. (This in an administration that purportedly wants to “deconstruct the administrative state.”) The result is the sort of authoritarian crackdowns we are now seeing, including in Portland, where the administration is using national security rhetoric to justify letting DHS operate far beyond its jurisdictional limitations.
In a Facebook post where Angelo A. Paparelli, a highly respected immigration lawyer, posted without comment a New York Times opinion piece about what’s happening in Portland (see Michelle Goldberg’s great column, “Trump’s Occupation of American Cities Has Begun”), a contrarian commenter started right in by suggesting that Angelo must “love anarchy” and “hate America.” Nothing in his post, or in his history, would suggest anything of the sort. Why do Trumpers so often resort to this kind of rhetoric? And it rarely helps to respond with facts and figures. These Kool-Aid drinkers have long since absorbed the Orwellian dictate, “The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.” Remember, Trump himself said in 2018, “Just remember what you’re seeing and what you’re reading is not what’s happening.” Yes, it’s all fake news—except when it suits him. Then it’s all the Democrats’ fault.
My friend and fellow immigration law warrior Rebecca Eichler recently posted the image I am sharing here. It’s a relevant update of the famous prose poem by the German Lutheran pastor Martin Niemöller. Fascism is here. In America. Today. The question is: will you resist, or will you collaborate?
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SOURCES AND FURTHER READING (more or less in the order in which the related topics are discussed above):
Nick Miroff and Mark Berman, “Trump threatens to deploy federal agents to Chicago and other U.S. cities led by Democrats,” Washington Post (July 20, 2020).
Jeff Neal, “Professor Crespo says events in Portland raise serious concerns about unlawful police tactics,” Harvard Law Today (July 21, 2020).
John Ismay, “A Navy Veteran Had a Question for the Feds in Portland. They Beat Him in Response,” New York Times (July 20, 2020).
Katie Shepherd and Mark Berman, “‘It was like being preyed upon’: Portland protesters say federal officers in unmarked vans are detaining them,” Washington Post (July 17, 2020).
Jonathan Levinson, “Federal Officers Shoot Portland Protester In Head With ‘Less Lethal’ Munitions,” Oregon Public Broadcasting (July 12, 2020).
Michelle Goldberg, “Trump’s Occupation of American Cities Has Begun,” New York Times (July 20, 2020).
Dina Francesca Haynes, “Nativists are Instrumentalizing Administrative Law,” Yale Journal on Regulation, Symposium on Racism in Administrative Law (July 21, 2020).
“‘What You’re Seeing… Is Not What’s Happening.’ People Are Comparing This Trump Quote to George Orwell,” Time Magazine (July 14, 2018).
Carrie Cordero, “Department of Homeland Security Law Enforcement Agencies Require Expanded Oversight,” Lawfare Blog (June 3, 2020).
“First They Came ….,” Wikipedia entry for the famous Martin Niemöller saying.
