“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.
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.
In practice, until Trump, expedited removals without hearings were largely reserved for immigrants apprehended within 100 miles of the border within 14 days of entry. Others were “caught and released” into the community pending their hearings. Trump’s EOs vow to end catch and release and apply the tools of expedited removal nationwide to the letter of the Clinton-era law to anyone who crosses the border within the previous two years.
Fortifying the Border Patrol and Building a Deportation Force
To deliver on his promises of mass deportations, Trump has advocated the hiring of 5,000 additional Border Patrol agents and 10,000 more immigration officers in the nation’s interior.
Far from being outliers, both demands are in keeping with historical trends. Among its myriad provisions, the IIRIRA authorized a sharp increase in the number of Border Patrol personnel, which doubled in size between 1996 and the 9/11 attacks, and have doubled again since 9/11.
Partnering with Local Governments and Punishing Sanctuary Cities
In addition to beefing up the Border Patrol and ICE, Trump’s EOs call for a rapid expansion of the “287(g) program” (named after a provision of federal law) aimed at deputizing local and state police agencies to serve as quasi-immigration agents in the apprehension of undocumented immigrants. The EOs also threaten crackdowns on so-called “sanctuary cities” that refuse to partner with immigration authorities by denying such jurisdictions federal grants and funding.
The 287(g) program—you guessed it—was added to the books by a provision of the IIRIRA.
While there is nothing in the legislation signed by Clinton that approaches Trump’s two “Muslim bans” (which to date have been derailed by the courts), Clinton took executive actions to suspend entry into the U.S. of designated classes of people from several nations, including Zaire, Nigeria, Bosnia and Serbia, Sudan, Angola and Sierra Leone. Both George W. Bush and Barack Obama did the same.
More generally, according to Human Rights Watch, the IIRIRA ran afoul of the U.N. Convention Relating to the Status of Refugees by making it impossible for any immigrant convicted of an aggravated felony to obtain protection from a return to persecution. Even relatively minor drug and theft offenders with sentences of one year or more can be sent to persecution by U.S. immigration authorities. International standards, by contrast, limit such returns to those convicted of serious crimes and who would constitute a danger to the community.
The Southern Border Wall
Trump’s EOs also could make good on his campaign promises to erect “a great and beautiful wall” along the 2,000-mile U.S.-Mexico border.
Here, too, the promises, while financially exorbitant and diplomatically disastrous, find firm footing in past practices.
In 1990, a 14-mile, triple-deep fence was constructed in San Diego. In 1996, the IIRIRA authorized the federal government to build additional barriers. And in 2006, the Secure Fence Act was passed, authorizing completion of still more. Today, there are 700 miles of fencing along the southern border.
Among those voting in favor of the Secure Fence Act was Hillary Clinton, then the junior Democratic Senator from New York. Among those voting against was Bernie Sanders, then a member of the House of Representatives from Vermont.
Understanding the full political, social and legal underpinnings of Trump’s xenophobic immigration proposals is the key to defeating them. It isn’t sufficient—nor is it factually accurate, as this look back at the ugly legacy of Bill Clinton shows—to brand them as unprecedented or an aberration.
To combat and ultimately destroy Trumpism, we can’t return to Clinton-style neoliberalism. When it comes to immigration, we have to promote a progressive approach that, as advocacy groups like America’s Voice suggest, emphasizes a direct, fair and inclusive road to citizenship for immigrants, fair labor standards for all working people on both sides of the border, stringent environmental protections, equitable international trade agreements and law enforcement practices that recognize and protect immigrants’ rights.
It’s time to come together for the battles ahead.
This column was originally published by Truthdig.com