Whose Safety? An Early Analysis of the “Enhanced Public Safety” Executive Order

(This is the second installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Click here to read the first installment, on the Border Security Executive Order. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Either I love my country or I hate myself, because here I am drafting another essay at 9:45 PM. (Or both. Possibly both.) At any rate, it’s an oft-quoted maxim that the more innocuous a law’s title is, the more insidious the actual contents are— and the Executive Order on Enhancing Public Safety in the Interior of the United States is no exception to this rule.

There’s some familiar language from the other executive order:

• The creation of 10,000 ICE officer positions, despite the general hiring freeze in place for all federal positions. This one sounds an awful lot like the 5,000 border patrol jobs created in the other executive order from today.
• The Secretary of Homeland Security may deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. I think the language of this provision is literally exactly the same, though I suppose I can’t fault the administration for recycling it.
• Much like we’re repealing “catch and release,” we’re also repealing the Priority Enforcement Program. The order reinstates the Secure Communities program, which was in place from 2008–2014, and is generally much more aggressive about sending people into ICE custody when they are charged with crimes. Given that the program arrested 3,600 American citizens, I can’t say I’m excited about the change, but nor can I say it’s all that surprising.

Some of the provisions, however, are very different:

• In general, there is a lot more rhetoric involved, especially in the initial sections. I personally don’t believe these sections are rooted in fact or otherwise worth repeating — there’s little substance to be gleaned, except perhaps for the insight they show into the administration itself. I suppose it might be worth reviewing the Purpose section if you want to get good and angry about something. I’m noting some general fact-checking below, both to educate and to help myself feel better about the world.
• Unlike the previous executive order, which at least presumed illegal entry into the country, this executive order contemplates immigrants who have engaged in no illegal activity. In addition to the general provisions about criminal conviction, Section 5 also discusses a variety of other categories of immigrant — almost all of which are very vague and have obvious problems with enforcement. If nothing else, it’s not clear how the factual findings necessary to determine someone belongs to one of these categories would even be made, and it seems to largely be left to the officer’s discretion. Here’s the full list:

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

• This executive order talks about consequences for so-called sanctuary jurisdictions — and both the status of a “sanctuary jurisdiction” and the appropriate sanction are determinations that the federal government gets to make. The Attorney General and the Secretary of Homeland Security, to be more precise. They also have the power to exempt cities from these sanctions, despite finding a city to be a sanctuary jurisdiction, for the purpose of funding more law enforcement. About the only good thing I can say about this provision is that the ACLU has probably already filed a request for injunctive relief from it.
• This executive order literally requires the Secretary of Homeland Security to publish weekly reports documenting “criminal acts by aliens” and what jurisdictions are “failing to honor” detainers for those people. Weekly reports. Of all immigrants charged with crimes. For every single jurisdiction in the United States. I hope General Kelly wasn’t planning on sleeping anytime in 2017.
• The administration is creating a special Office for Victims of Crimes Committed by Removable Aliens. It’s not clear what this office would actually do, other than issue quarterly reports on what it’s doing — the order just says it has to “ provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.” I can’t even imagine what this is going to look like, for reasons I’ll describe below.
• The AG and Secretary of Homeland Security also apparently have to create quarterly reports documenting the immigration status of everybody being held pretrial basically anywhere. It includes federal systems, state systems, “local detention centers,” and U.S. Marshall federal pretrial custody. So that’ll be fun to get done with a skeleton staff during a hiring freeze.
• The order specifically exempts immigrants being detained from the Privacy Act of 1974, which I’m honestly not even sure they can do. This is another provision that the ACLU has probably already filed a request for injunctive relief about — it’s essentially changing legislative law, which the Supreme Court generally frowns upon. At any rate, this provision needs to exist in order for the order of public weekly reports to be at all legal, because it would otherwise be subject to the Privacy Act. So if this provision tanks, presumably the weekly criminal charge reports and quarterly immigration status reports would go down in flames as well. You know, if they haven’t already been doused in gasoline and napalm by an irate Secretary of Homeland Security who doesn’t have time for this nonsense.

Some general fact-checking of note (in case it’s helpful to you, and before I rupture something):

As I mentioned above, this particular executive order contains a plethora of misinformation and downright propaganda. In the interests of clarification and also not punching nearby walls, I would like to unpack some of it for you:

• There is no evidence to suggest that immigrants commit crimes at greater rates than citizens; in fact, all relevant studies show they commit crimes at lower rate due to higher risk exposure. I can personally confirm this through professional experience, but since I would never encourage you to simply take my word for it, here are some articles on the matter.
• There is no evidence to suggest that sanctuary practices “destroy the fabric of the Republic” or “have caused immeasurable harm to the American people.” Putting aside the fact that there have been no studies done on this to date, it doesn’t even make intuitive sense — by definition, sanctuary practices are only enacted in circumstances where the local government believes it would be disruptive to their governance and general public safety to comply.
• There is no evidence to suggest that people who are out of status represent a greater threat to society than people who are present legally or are citizens. In fact, many people who are out of status in the United States don’t even know they are out of status, because they have failed to comply with confusing regulations and believe they are here legally.
• There is no evidence to suggest that complaining witnesses in crimes with immigrant defendants require special protections. Again, immigrant populations don’t even commit crimes at the same rates as citizen populations, likely due to higher risk exposure. And when people who immigrate do commit crimes, there’s very little commonality in the charges, which means there’s also very little commonality in the victim populations. This is like creating an office to study Victims Named Bruce.
• It is literally the current structure of immigration law to “exempt classes or categories of removable aliens from potential enforcement” based on circumstance and public safety risk. That is how humanitarian-based special status works. Asylum status, refugee status, SIJ status, humanitarian parole, T visas, and U visas all function as form of exemptions, which means this executive order is literally saying that we cannot faithfully execute immigration laws if we faithfully execute immigration laws.

As several news sources have insinuated, this is likely not the last executive order we’ll see this week on the topic of immigration. I’ll continue to write about executive orders as I am able, though I think two articles is my upper limit for one evening. If you’ll excuse me, I have a date planned with a pocket constitution and a pint of cotton candy ice cream, and I’m told it’s rude to keep either of them waiting.