Mar 30, 2017 by



  Donald Trump and Bill Clinton meeting at Trump Tower in 2000. (Ralph Alswang / Office of the President)

“Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. The tradition of all dead generations weighs like a nightmare on the brains of the living.”

—Karl Marx, “The 18th Brumaire of Louis Napoleon” (1851-52)

The most cruel, divisive and dangerous policies adopted thus far by the administration of President Donald John Trump are those embodied in the executive orders (EOs) he has signed into law in the areas of immigration, terrorism and border security. They’re so cruel, indeed, that many influential commentators have fostered the narrative that they are unprecedented.

Yet they are not. In both the larger historical context and the smaller scope of the recent past, they fall well within the boundaries of America’s deep-seated nativist traditions.

Trump isn’t the first chief executive to tap into those traditions. His policies haven’t sprung from thin air. From the Alien and Sedition Acts of 1798 to the Chinese Exclusion Act of 1882, the “red scares” of the 20th century, the “Operation Wetback” mass deportations of the Eisenhower administration, and the deportation records set by President Obama, our immigration laws and policies in good measure have been driven by political expediency, paranoia, scapegoating, racism and economic exploitation.But while Trump’s programs fit nicely into the broad sweep of our nativist legacy, they also owe a specific debt to legislation enacted during the tenure of none other than President William Jefferson Clinton.

Yes, you read that right. Much that is repugnant and regressive in Trump’s EOs—the ballyhooed southern wall, the expansion of the border patrol, the mass detentions and “expedited” removals of the undocumented and “criminal aliens,” the deployment of local police to enforce immigration laws, even the violation of international standards governing the treatment of refugees—can be traced back to the statutory framework constructed during the Clinton era.

The “great triangulator” didn’t just fuel an already existing trend toward mass incarceration with the enactment of the Violent Crime Control and Law Enforcement Act of 1994, or add to the miseries of the poor by upending the welfare system with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. He also left a stain in the field of immigration.

In his Jan. 23, 1996, State of the Union address, Clinton stressed the need for tough federal action on illegal immigration. “After years of neglect,” he declared, “this administration has taken a strong stand to stiffen the protection of our borders. We are increasing border controls by 50 percent. We are increasing inspections to prevent the hiring of illegal immigrants. And tonight, I announce I will sign an executive order to deny federal contracts to businesses that hire illegal immigrants.”

In short order, he went far beyond the hiring ban, signing into law two pieces of omnibus legislation that paved the way for Trump’s current nativist agenda: the Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in April 1996; and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which passed in September of the same year.

Together, the two acts (along with a few smaller bills) combined to do the following:

Expand the Definition of Criminal Immigrants Subject to Deportation

Prior to 1996, immigrants were subject to deportation following state or federal convictions for murder, rape and other serious felonies. The AEDPA added 17 “aggravated felonies” to the list, including theft, counterfeiting and receiving stolen property in cases involving terms of imprisonment of five years or more. Under the IIRIRA, the term of imprisonment needed to render theft and forgery offenses as grounds for deportation was reduced to one year, including probationary sentences.

The net effect of the changes was to vastly expand the number of immigrants, both documented and undocumented, subject to removal from the country. Trump’s EOs build on the AEDPA and IIRIRA by targeting for removal undocumented immigrants either convicted of, or simply charged with, any criminal offenses.

Mandatory Detention

Along with broadening the definition of deportable crimes, the 1996 acts called for the mandatory detention of immigrants convicted of aggravated felonies pending their removal. As a result, the average daily number of immigrants held in detention centers skyrocketed from 6,785 in 1994 to 19,458 by the time Clinton left office. Many were held in private, for-profit facilities.

Today, Immigration and Customs Enforcement (ICE) holds some 34,000 immigrants per day in custody, many in privately run jails. That number, according to the Department of Homeland Security (DHS), will jump to 80,000 under Trump’s plans.

Ending Traditional Deportation Hearings and Instituting Expedited Removal

The IIRIRA did away with traditional deportation hearings, replacing them with “removal” proceedings. The change was by no means semantic. Along with the revised nomenclature, under the new law, immigrants were accorded fewer procedural rights.

Among other changes, the IIRIRA eliminated an often-invoked defense known as “suspension of deportation,” which permitted immigrants to seek deportation relief if they had been physically present in the U.S. for at least seven years, were of “good moral character” and were conviction-free for such period, and could demonstrate that they or their family members (if lawfully present) would suffer extreme hardship if they were deported.

The IIRIRA replaced the suspension remedy with “cancellation of removal,” a form of discretionary relief that requires immigrants to meet the very stringent bar of proving 10 years of continuous presence and establishing that their expulsion would cause “exceptional and extremely unusual hardship” to a qualifying U.S. spouse or child. Hardship to immigrant applicants themselves was eliminated as no longer relevant.

The number of cancellation grants, moreover, was capped at 3,000 per year. Those who didn’t qualify were barred from seeking lawful admission to the U.S. for either three or 10 years, depending on how long they had been illegally in the country.

Even more importantly, the IIRIRA instituted the dreaded process of “expedited removal.” Under the program, immigration agents were empowered to expel immigrants, without even bringing them before an immigration judge for a hearing, if they could not show that they had been in the country for two years.


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