Disillusionment

Worst of the worst, really?

I was gone for a couple of weeks, and when I got back the whole place had gone nuts. The president seemed bent on conquering Greenland, apparently because he thinks the island is as big as it looks in the traditional Mercator projection and he just had to have it, and had in fact persuaded the Venezuelan Nobel Peace Prize winner María Corina Machado to give him her prize, or at least the gold medal that represents it (the prize itself also includes a variable monetary award of around 10 million Swedish kronor or one million US dollars, which the recipient normally uses to benefit the cause for which it was awarded, and which Machado didn’t surrender to Trump, as far as I can learn, though I’m sure he’d have cheerfully accepted the money if it was offered, and the reputational enhancement that comes of having been judged worthy of the prize by the Norwegian committee, a glory that can no more be transferred than that of Trump’s unearned Super Bowl rings and Purple Hearts, as the Committee made clear).

Then there was the paramilitary occupation of Minnesota by 2000 irregular troops, 3000 after January, which seemed a good deal more serious than all that tomfoolery, more Miller than Trump if you know what I mean, with ICE and CBP terrorizing the Twin Cities with their arbitrary seizures of people, especially Somali and Latino, in “Operation Metro Surge” since Trump condemned Somalia as “garbage”, not so different from what we’d already seen in California, Illinois, Oregon, North Carolina, and Washington, D.C., in particular the ethnic profiling leading to arrests and detention of US citizens and permanent residents and otherwise protected people and kidnaping of children, parking them in the hideous prison camps rising around the country, not to mention all the simple people occupying what may be considered an “illegal” position on US territory (I’ll get to that later) doing nothing but working, often in what we call “essential” occupations, educating themselves, and caring for their kids—the exceptional discipline of the general population rising to help protect their neighbors evade the invaders—and the out-of-control response of the latter, who seem to have decided they’re at war and so far murdered two.

Things are now apparently getting a little bit better. Seven hundred of the Guards have been removed from the site. Citizens and other officially protected individuals are still getting wrongfully arrested for immigration violations, but are now able to file a habeas claim to get out, though not very quickly: it’s going to take you a long time to get your day in court as the entire federal justice system in Minnesota collapses:

the Minnesota U.S. Attorney’s Office has been crippled by mass resignations, including some of its most senior career attorneys. That has left the remaining DOJ attorneys in Minnesota inundated with more cases than they can keep up with. But I’m not sure that does justice to what’s been happening. It’s quite a bit worse than that.

The quality of lawyering has eroded to such a point that government lawyers have been unable to keep up with the court orders demanding that detainees be released. As a result, detainees have lingered in confinement even after courts have ordered their release....

You’ve probably heard of Julie Le, a DHS lawyer seconded to the U.S. Attorney’s Office who was called in to explain why ICE was failing to comply with court orders and more or less broke down in front of the judge:

“I wish you would just hold me in contempt of court so I can get 24 hours of sleep,” Le said. “The system sucks, this job sucks, I am trying with every breath I have to get you what I need.”

***

Speaking of immigration law enforcement, I just found out I’ve been misleading you guys for years with the story that the United States historically had open borders up until 1924; the correct date is 1929.

The nativist panic of the 1924 Immigration Law was all about swarthy, garlic-eating Catholics and Jews from southern and eastern Europe, migrants who generally arrived by ship at well-policed ports like Ellis Island. The border fear apparently didn’t arrive until later, with the fear of Mexicans, in the form of a massive deportation campaign from the Rio Grande Valley starting 1928 and the passage of the Undesirable Aliens Act in March 1929, making it for the first time a misdemeanor to cross the border anywhere other than at a designated crossing, punishable by a year in prison, with two years and a felony conviction for a second offense, crafted by the fierce segregationist and lynching advocate Senator Coleman Livingston Blease (D-SC—”When the Constitution steps between me and the defense of the virtue of the white women of my state, I will resign my commission and tear it up and throw it to the breezes,” he said in 1921) and eugenicist Labor Secretary James Davis (remembered for warning the public of “rat-men” crossing the border to pollute the American gene pool).

These reprehensible sentiments are no longer publicly avowed (though as I keep saying you can always detect them in the later representatives of the nativist movement, from Lindbergh to Buchanan to Trump), but Blease’s law never goes away; it’s still alive in immigration law, 8 USC §1325 (and §1326 for the second time), which you may remember from Julián Castro in the 2020 presidential campaign:

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§1325. Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties

Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Meanwhile, lawmaking in quite a different spirit began after World War II, with the effort by the new United Nations to establish an international standard not just for the prosecution of war crimes but also for the just and humane treatment of their innocent victims:

1951 Convention Relating to the Status of Refugees (United Nations):

The US incorporated the convention on refugees (applying from outside the US) into our own immigration law in 1952, but failed to deal with the matter of asylum requests (from inside) until 1980, when they did it as follows:

8 USC 1158: Asylum [1980]:

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

(2) Exceptions

(A) Safe third country

Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

You see the contradiction here: §1158 says an asylum seeker is free to apply for asylum (or be transported to a safe third country) even if they entered the country in an irregular way, and remain free until the asylum claim is resolved; and §1325 says if they do it in an irregular way they’re going to prison and getting expelled afterwards, with a heavier penalty if they try again. The two provisions can’t both be right. And ideally, the right one ought to be the one grounded in the humane thinking of the period after World War II and not the racism of the 1920s. Just saying.

What I think, and have been trying to argue for a while, is that Stephen Miller had a similar insight and came to the opposite conclusion. I can’t say I have a lot of good data for this, but I do have some decent narratology, and I’d like to lay that out here.

The backdrop is in two trends from between around 2000 and 2020; the rediscovery of §1325 as a tool for deportation in the early W. Bush administration and the drastic increase in asylum cases in Obama’s second term. The first really began in around 1998, but took off in 2002 and became huge with the start of Operation Streamline in 2004-05 under DHS Secretary Michael Chertoff:

Nearly all of the prosecutions for unlawful entry [i.e., misdemeanor § 1325] during this period were brought through Operation Streamline. Streamline began in 2005 in Eagle Pass, Texas... The Border Patrol in Eagle Pass lacked adequate bed space in immigration detention centers to house all of the immigrants it arrested... As a consequence, the Border Patrol had to release immigrants from countries other than Mexico into the United States (Mexican nationals could be returned across the border, but immigrants from elsewhere could not)... To keep these immigrants in custody, the Border Patrol proposed that federal prosecutors in the Western District of Texas charge every non-Mexican immigrant with unlawful entry ... If prosecutors did so, immigrants could be kept in federal criminal custody instead of being released. After prosecutors raised concerns about potential national-origin discrimination claims, the program was modified to include undocumented arrestees from Mexico... Thus Operation Streamline was born. The government began referring all undocumented immigrants arrested near Eagle Pass for prosecution, and these immigrants were processed en masse for misdemeanor § 1325 charges at the federal courthouse in Del Rio, Texas.

Eagle Pass and Del Rio, still the main crisis center in 2024, a crisis engineered from the start so the Border Patrol could avoid its legal responsibility for either providing its detainees with adequate housing or releasing them into the community otherwise.

Then came the “caravans” from Central America’s Northern Triangle, fleeing drought and environmental degradation in the countryside and gang warfare in the cities (the latter fueled by the United States, especially in El Salvador, whose deadly gangs like MS-13 had formed in Los Angeles prisons before being deported to a “home” the members mostly didn’t know at all) and later the victims of earthquake, hurricane, gangsterism, and really bad government from Haiti and Venezuela and Nicaragua and Cuba.

You can pretty much read the story from the numbers:

—the early rise, the shooting up of cases from 2003 through 2009, the diminution, at first hesitant, as the Obama administration realizes in 2009-16 that these people are legitimate asylum cases, the enormous rise from 2017 to 2019 as Miller works out how to exploit §1325 to deport more and more (mass trials of up to 70 defendants, plea bargains committing defendants to voluntary deportation), and finally the advent of COVID-19 not just cutting the flow of asylum seekers but also providing a new deportation technique in Title 42, the public health rule that allowed DHS to deport more or less anybody to prevent the spread of COVID (though in fact there was more COVID in Texas than Mexico).

After which the incoming Biden administration actually closed the border by legitimate legal means, by requiring asylum seekers to apply from the other side using the CBP One phone app and deporting them otherwise, which has not been widely reported because it’s the story of Biden succeeding at something.

And of course because reporting that the problem was solved might suggest that the immigration crisis wasn’t such a terrible crisis after all—at least not on the apocalyptic scale of the rhetoric of Trump, Miller, Vance, and Governors Abbott and DeSantis. Which it in fact wasn’t, as Digby came out to say on Friday:

And as I’ve been trying to explain since 2015 or so. There was Miller’s myth of migrant criminality, built out of anecdotes (some of them true, like the awful story of Laken Riley, but ignoring the fact that such crimes were literally thousands of times more likely to be committed by born Americans), and Miller’s legal theory of migrant criminality, based on the dubious grounds of the racist 1929 §1325, and they never did fit together at all, let alone in such a way as to justify Miller’s insane quota this year of 3000 arrests per day (the great majority of actual criminal aliens are already in prison, thanks to the cooperation between local cops and migrant communities protected by “sanctuary” laws; not out looking for laboring gigs in the Home Depot parking lot or attending the hearings for their asylum claims or picking their kids up from school or going to church...—i.e., in the places where ICE has been looking for them).

The big thing that has been happening over the past year of the Trump administration isn’t just the cruelty and violence and racism of their treatment of suspected “illegals” who mostly aren’t illegal, or the unconstitutional and now often violent efforts to suppress dissent, but also the gradual dawning of public awareness of what an imposture, what a fraud the whole program has been. Miller and Noem and Bondi promised over and over again to deliver us from the “worst of the worst”, but they clearly had no idea who those were, or even who was and who wasn’t authorized to live in the US, and kept picking up instead the ones who reminded us most of our own grandparents and great-grandparents, the creators of our own complex American families, citizens and PRs, refugees and asylum seekers, parents and entrepreneurs intoxicated with the American dream, friends and neighbors. There is no crisis outside of Miller’s hysteria and Trump’s and Vance’s shameless lies. The “worst of the worst” hardly exist.

I think it’s something more than the “disapproval” registered by the polls, or the idea that Trump has gone “a little too far” in immigration policy—something more visible in the remarkable Democratic margins we’ve been seeing in special elections; I think we’re seeing is a literal disillusionment in Republican government, with a number of factors (the shameful attempt to conceal the Epstein evidence, the idiocy of Trump’s own narcissism projects, the failure to protect our health insurance premiums, the affordability crisis in housing in particular) of which the misconduct of ICE and CBP is maybe the most spectacular and photogenic aspect. We’re finally starting to understand we’ve been treated like fools and I think we’re getting angry.