Daily Dispatch 10/31/2019: Defunding Hate

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InAlienableDaily Dispatch
October 31, 2019

In August it was reported that, “the Department of Homeland Security will lose $116 million previously allocated for Coast Guard operations, aviation security and other components in order to fund nearly 6,800 more beds for immigrant detainees.” What was going on? The Trump administration had expanded Immigration and Customs Enforcement’s use of detention for immigrants well beyond the 45,000 daily average of detention beds that Congress had authorized for fiscal year 2019. In August of 2019 the administration was holding 55,000 people, while the daily average for the year had topped 50,000 (a significant increase over the 38,106 daily average recorded in FY2017). Over budget, and out of funds, the administration moved money around from other security operations in violation of the budget authorized by Congress. Indeed, there was no pre-notification or request for the transfer. Merely a memorandum from DHS notifying OMB that the transfer had already occurred.

The administration’s expansion of detention was pitched as the result of a dramatic increase in the number of people apprehended at the border. That apprehensions at the border had more than doubled from January through May compared to the same period last year is uncontested. However, the reason ICE detentions increased had little to do with border apprehensions and everything to do with Trump’s war on asylum. Border apprehensions were in fact at an all time low before this year’s spike, and at no point in recent history, including this year, has the total come anywhere near the 1.6 million people apprehended in 2000 at the southwest border, when average detention numbers were just over one-third what Trump has clocked. In August of this year, as total detentions broke 55,000 a day, the number of asylum seekers who had already passed their credible fear interview, but were still in detention was over 9,000 a day. This was being done in spite of several court directives to the administration mandating that it to allow for the release of people seeking asylum through humanitarian parole, and admonishing southern district immigration courts for issuing blanket parole denials.

In short, the Trump administration overspent on detention, took money from the Coast Guard and other security accounts to pay for it contravening Congressional oversight. And did so in order to detain people federal courts had already directed the administration to release.

However, this was not the only shift in funds. DHS also moved money around to pay for temporary courts being erected at the border to hear asylum cases under its Migrant Protection Protocol program. The MPP is better known as the Remain in Mexico policy, under which people seeking asylum in the United States are made to await hearing dates for immigration courts in Mexico. The policy has led to 55,000 people stranded on the border, many facing recurring insecurity and placed far from counsel and other assistance they would normally be able to access in preparing their asylum cases. The absurdity of the policy has been increased by the fact that once a court date is achieved, the people seeking asylum do not have access to a real immigration court. Rather, they are shuffled into makeshift tents where they address judges sitting in a real courtroom somewhere else through video chat. The facilities are not run by the Department of Justice (like real immigration courts), but by the Department of Homeland Security, which, predictably, has turned the whole exercise into a debacle of over-wrought security measures that make it nearly impossible for asylees to meet with counsel. The whole system, as noted by attorneys attempting to provide assistance, is designed to fail. 

In order to pay for this obscene deconstruction of due process, DHS shuffled $151 million from FEMA (during hurricane season no less), without prior notification or authorization from Congress for such purpose. So, not only is the administration abusing executive authority to create draconian anti-immigration policies through executive order or administrative rule making, but is also using funds authorized for other purposes to pay for implementation of these measures. 

Reprogramming funds is not a new phenomenon. Last year DHS moved $200 million around to fund 2,300 new detention beds and expand deportation operations. According to CNN, “Congressional records indicate that ICE reprogrammed $83 million combined in fiscal years 2014 and 2015, and another $127 million in fiscal year 2016.” However, in these instances Congressional oversight committees were notified and approved the funds transfer. This does not appear to have happened this year.

So, whatever one thinks of the policies themselves, such an unauthorized shifting of funds is a clear violation of expressed Article 1 powers of the U.S. Congress. Will Congress challenge the administration on constitutional grounds? Not likely at the moment. But Congress should nevertheless seek to legislatively restrict DHS’s authority to reprogram money.

Currently, there is a looming budget impasse. The government is operating under a continuing resolution (CR) - which is funding Federal agencies at the level set for last fiscal year (which ended September 30th). The current CR is operative until November 22 at which point a new one will need to be passed, or the government will close again.

As budget negotiations continue, we are supporting the Defund Hate Campaign of Detention Watch Network. In a letter sent to Congressional leadership, we joined the campaign in making these specific requests: 

1. Cut funding for ICE and CBP, including decreased funding for detention and agents, and no border wall funding.
2. Terminate DHS’s authority to transfer and reprogram funds for the purpose of detention and enforcement.
3. Terminate the “Migrant Protection Protocols,” or MPP program, an unlawful and shameful program that returns asylum seekers to Mexico to await their court dates. There are more than 140 publicly reported cases of rape, kidnapping, and assault against asylum seekers forced to return to harm through this program.
4. Place strong guardrails on the treatment of people in ICE and CBP custody, particularly ensuring that no person is held in CBP custody for longer than 72 hours. As many members of Congress have observed first hand, no amount of funding will ensure that ICE and CBP treat those in its custody humanely unless the law instructs them to do so.

As the budget process unfolds, using these ideas as a guide, we will continue to speak out against this administration’s abuse of executive authority.