A genealogy of the Immigration and Customs Enforcement Agency

America has legislated laws and built institutions for the ejection of undesirables since its inception – this is a country forged through deportation as much as it is by immigration. Immigration and Custom’s Enforcement Agency, referred to by its acronym ICE, is the institution synonymous with the Trump administrations hardening immigration policies. Initially set up to prevent terrorism and transnational crime, ICE has been at the center of a litany of immigration scandals in the post 9/11 era. 

A consistent critique of ICE is that not only does it is constantly overstep elements of the constitution, but that its very existence is at odds with “American values”. The reality is that the countries specific approach to immigration legislation has resulted in the emergence and evolution of deportation institutions built and molded by the perspectives of the American electorate

The Plenary power doctrine

In the years following the Civil War Federal policy on immigration became increasingly founded on the plenary power doctrine, which stipulates that the political branches of the legislative and the executive have the sole power to regulate all aspects of immigration, as the basic function of exercising territorial sovereignty. The Chinese Exclusion Act of 1882 which barred the immigration of Chinese laborers to the United States came about through increasing resentment in California to Chinese immigration, and its perceived impact on labor. In a Supreme Court case in which the exclusion of Chae Chan Ping was upheld, the court noted that “the government of the United States, through the action of the legislative department, can exclude aliens from its territory”.Over the course of the next 80 years, the Supreme Court affirmed the plenary power doctrine in a case after case – undergirding this is the idea that keeping immigration within the political branches to ensure a uniform and efficient immigration system accountable to the electorate. These legal developments have been paralleled by an unfurling bureaucracy tasked with managing naturalization and expelling unwanted “aliens”.

Federalization of immigration and naturalization bureaucracy

After the passing of the Immigration Act of 1891, the Office of the Superintendent of federal immigration set up stations up and down the country – the largest on Ellis Island in New York. The Immigration Service began to hire Immigrant Inspectors who had previously worked for state agencies. The Federalized control over immigration continued with increasing congressional intervention into the 20thcentury, resulting in an immigration fund with an annual appropriation in 1909. Naturalization, which since the Naturalization Act of 1802 had been under the control of “any court of record” was brought under the federal control through the Basic Naturalization Act of 1906,followed by the Bureau of Naturalization in 1913.

Anti-immigration sentiment finds a practical outlet

In the first two decades of the twentieth century, over 4.5 million immigrants settled in the US, many entering large industrial cities, swelling the labor market and causing social frictions with existing communities. Xenophobia at this time was a well-established element of American social life, but plenary power allowed the federal government to respond to these sentiments with a draconian immigration policies and more combative institutions. In 1924, congress created the U.S. Border Patrol, within the Immigration Service. Deportation mechanisms began to increase exponentially during the twenties, with the deportation of ideological undesirables as well as labor organizers, many blamed for social ills and disturbing the peace. The increase of plenary power and concentration of exclusion and deportation laws in the hands of the executive was only offset by administrative discretion, which barely papered over the increasingly racist immigration policies. On June 10, 1933 the Immigration and Naturalization Service (INS) was established through Executive Order 6166,with congress using this agency to channel state resources to the investigation, exclusion and prevention of illegal entries and the deportation of criminal and subversive aliens. Popular understanding of the INS is that it functioned as a law enforcement agency on the countries southwestern border. Dobrah Kang argues that while Congress shaped and guided federal immigration policy, local INS officials often carried out expedited deportation practicesincluding voluntary departure, border patrol roundups and mass removal campaigns like Operation Wetback. Many of these hinged on the agency’s exemption from the Fourth Amendment

9/11 and the emergence of ICE

The September 11, 2001 attacks changed US immigration policy forever. The 9/11 Commission Reportstated that if immigration laws had been strictly enforced, fifteen of the nineteen terrorists would barred from entry – fueling concerns that immigration management is a national security issue. In response, Congress passed the Homeland Security Act in 2002, establishing the Department of Homeland Security and splitting the INS into three agencies: US Citizenship and Immigration Services (USCIS) US Customs and Border Protection (CBP) and ICE. Congress stepped in to provide financial clout as well appropriating more funds for immigration agencies than had previously been requested. In the 2012 fiscal year the US governmentspent $18 billion on federal immigration enforcement– 24% higher than all other principal federal criminal law enforcement agencies. By 2014, CBP was the largest single law enforcement agency in the country, whilst the ICE budget grew by 87% between 2005 – 2012. Within that time the agency moved more solidly towards immigration enforcement, with around 8,000 ICE agents dedicated to locating, arresting, detaining and removing undocumented migrants. 

ICE courts political and financial power to justify and expand its mandate

Like the INS before it, ICE has been circumventing constitutional norms by expanding its work. moving to protect and expand this unprecedented access to the US treasury purse strings through justifying its mandate, but also through courting lobbyists and US capital.

 In the 2016 General Election, the National Immigration and Customs Enforcement Council endorsed Donald trumpfor president stating that his policies of providing more powers and an end to Sanctuary Cities. Trump has rewarded their support with a number of executive orders, reinforcing the plenary power discourse over immigration. On January 25 2017 Trump issued Executive Order which would increase the number of immigrants  who could be expanded to include 345,000 fugitives with final deportation orders and 600,000 expired visa holders. In a testimony before the homeland security subcommittee of the House Appropriations Committee, Thomas Homan, acting director of ICE at the time, laid out various reasons why the agency was requesting a $1.2 billion injection of funds. Homan cited the number of detainer requests increasing by 75% between 2016 and 2017 as the reason for the need to 51,000 beds in immigration detention centers. In response, the Senate Subcommittee passed the appropriations bill which would allocate $7.21 billion to ICE, a $134 million year-over increase. In the text of the bill, the Committee reiterates not only its support for ICE bur also its call for “additional personnel and detention beds” for the apprehension and removal of individuals outlined in Trumps January 25 2017 Executive Order. Meanwhile, luxury landlords across New York state collect millions in rent from ICE – landlords who have funded Andrew Cuomo’s political campaigns.

ICE is not aberration, but a logical development of the plenary power doctrine

Immigration reform is a toxic topic in the US political system. Incessant partisan point scoring between the two parties has lead to vacillation by successive administrations over comprehensive reform. Into this political vacuum has stepped a sprawling bureaucracy, buoyed by plenary power and increasing access to state funds and close to symbolic judicial oversight. The concentration of immigration control, and its effect of creating agencies like ICE can be frustrating for progressively minded immigration reform advocates, who see the low levels of judicial oversight a meagre recourse for constitutional standards. However plenary power should not be seen as a brick wall towards a just immigration system, but as a call to roll up our sleeves and get to work in the political arena rather than the courts. The Chinese Exclusion Laws and the national origins quota system ended in 1943 and 1965 respectively, because of congressional repeal by way of decades of advocacy. Real grassroots work against ICE is what is needed, and the plenary power doctrine grants a realm of political opportunities for migrants rights activists. This realm can only be entered into and struggled within through coordinated grassroots agitation from below, which places pressure on the main parties, without engaging in myopic political gains.