What we are witnessing in America since the election of Donald Trump is the total collapse of democratic norms and our system of government. Or as Trump’s Chief Strategist Steve Bannon called it, the “deconstruction of the administrative state.” While Trump’s hardcore supporters think this is a great idea, where it leads is to the collapse of democracy and our 240-year experiment in self-governance. Bannon specifically referenced system of taxes, regulations and trade pacts, but I want to focus specifically on the one item he didn’t mention: Immigration.
The other issues: taxes, regulations, trade deals, are all things that can be undone or modified by future administrations. Yes, it might suck that we see more pollution, the wealthy gets even more tax cuts, and damage done to our foreign relations, but what is happening with immigration leads to a fundamental change in who America is at its core. Once this is done it cannot be easily reversed. This past week Press Secretary Sean Spicer said the president wanted to “take the shackles off” referring to ICE/CBP (Immigration and Customs Enforcement/Customs and Border Protection) agents. A 15-year ICE veteran in California responded “The discretion has come back to us; it’s up to us to make decisions in the field. We’re trusted again.”
We have already seen ICE/CPB agents exercising their new-found “discretion.” People on a domestic flight were forced to show identification to ICE agents before they were allowed to get off of a plane. Muhammad Ali Jr. was detained at Ft Lauderdale airport for 2 hours upon his return from Jamaica. A world-renowned French historian was held for 10 hours and was being sent back to Paris until Texas A&M University intervened. And a famous children’s author was held for several hours, bringing her to tears. Are these just bugs in a new system, or are they the primary feature?
As I read these articles in the news, it prompted me to go back and re-read one specific chapter in Hannah Arendt’s book The Origins of Totalitarianism. Specifically Chapter Nine: The Decline of the Nation-State and the End of the Rights of Man. It dealt specifically with issues relating to immigrants, refugees and asylum seekers. You should know this book was first published in 1950 and specifically looked at these issues starting with the period before World War I through World War II. I am going to quote the passages that seem to be most relevant to what is occurring in America today.
“Civil Wars which ushered in and spread over the twenty years of uneasy peace were not only bloodier and more cruel than all predecessors; they were followed by migration of groups who, unlike their happier predecessors in the religious wars, were welcome nowhere and could be assimilated nowhere. Once they left their homeland they remained homeless, once they left their state they remained stateless; once they had been deprived of their human rights they were rightless, the scum of the earth.”
The United States has essentially closed the doors on refugees and asylum seekers, many of which have been created by our interventions in the Middle East post 9-11 terrorist attacks. Not to mention those fleeing the violence in Central America. But beyond just closing our doors, Donald Trump has demonized refugees, mocked and made false claims about countries such as Germany and Sweden who have welcomed refugees. Trump has stoked hatred and fear of “the others” in his supporters. Arendt stated, “Nothing perhaps illustrates the general disintegration of political life better than this vague, pervasive hatred of everybody and everything, without a focus for its passionate attention …” This was a mainstay of Trump’s campaign, painting a bleak portrait of America and the world and blaming everyone: Obama, Clinton, Democrats, the media, our allies, refugees, “illegal” aliens, etc. except those who supported him, like Russia.
Europe attempted to deal with the minority populations in their country with the minority treaties. “Minority Treaties said in plain language what had been only implied in the working system of nation-states, namely, that only nationals could be citizens, only people of the same national origin could enjoy the full protection legal institutions, that persons of different nationality needed some law of exception until or unless they were completely assimilated and divorced from their origin.” Up until now the United States has afforded all persons, as our Constitution provides for, due process under the rule of law. The Constitution does not apply only to citizens. It refers to “persons” or “people” throughout, meaning it’s applicable to everyone in the country regardless of citizenship.
However, with the new “discretion” provided to ICE/CBP agents they have been given individual authority, as the veteran agent said “it’s up to us to make decisions in the field” to protect the nation. Arendt explained how this played out under the Minority Treaties. “They thereby admitted – and were given the opportunity to prove it practically with the rise of stateless people – that the transformation of the state from an instrument of the law into an instrument of the nation had been completed; the nation had conquered the state, national interest had priority over law long before Hitler could pronounce “right is what is good for the German people.”..” “But insofar as the establishment of nation-states coincided with the establishment of constitutional government, they always had represented and been based upon the rule of law as against the rule of arbitrary administration and despotism. So that when the precarious balance between nation and state, between national interest and legal institutions broke down, the disintegration of this form of government and organization of the peoples came about with terrifying swiftness.” This rule of arbitrary administration by ICE/CBP must be stopped immediately. The rule of law must be made clear to the agents in the field, and due process must be provided all those who are legitimately detained.
Under the Obama Administration, their priorities forced agents to concentrate on deporting gang members and other violent and serious criminals, and mostly leave everyone else alone. These are the “shackles” that field agents wanted removed. As a result of the unshackling of these agents, “collateral” arrests of bystanders are occurring and they are being taken in if they are just suspected to be undocumented, even if they have committed no crime. These “collateral” arrests did occur during the Obama administration, but they were officially discouraged, to the frustration of many agents. One Arizona agent voiced his frustration and political views when he asked “Which part of illegal don’t people understand?”, a question I have heard often from friends and family on the political right. Certainly this is a question to be politically debated, however it should never be a factor in the rule of arbitrary administration by ICE/CBP agents in the field.
Following the first large-scale roundups of immigrants, the new Department of Homeland Security Secretary John F. Kelly, said “President Trump has been clear in affirming the critical mission of D.H.S. in protecting the nation.” Notice he used the same language Arendt referenced; the priority of the nation overtakes the state and rule of law. How long before we hear Trump say “right is what is good for the American people”?
But just how does it protect the “nation” by deporting a mother of two who has been in the county for 20 years and has children that are American citizens? Or any of the so-called “dreamers” who were brought to the United States as children and have no other country? Or any of the other undocumented people who have lived and worked in the U.S. and have no criminal record. In fact a persuasive argument can be made that it has made the country less safe. One of the biggest challenges which has arisen with the new freedom given to the ICE field agents is the agency’s steadily deteriorating relationship with other law enforcement agencies. Local law enforcement agencies depend upon the cooperation of the communities they serve. The ICE raids are causing communities to withdraw from cooperation with any law enforcement, thereby making the job more difficult for local police agencies and the communities less safe. Documented legal resident, as well as undocumented aliens, and sometimes even U.S. born citizens, are subject to being rounded up in these broad sweeps until identities can be sorted out later. Clearly this a violation of the rights for both the citizen and the legal resident aliens, who have been detained without probable cause merely because they “look” like someone who might be in the country illegally. Considering that we have immigrants from all parts of the world, there is no doubt we also have undocumented immigrants from everywhere too. So how do you tell who’s undocumented by their looks?
Once we get past the large-scale ICE roundups, and then sort through the citizens and legal residents from those that don’t have the proper documentation, the next step becomes even more problematic. As Arendt explained, “The real trouble started as soon as the two recognized remedies, repatriation and naturalization, were tried. Repatriation measures naturally failed when there was no country to which these people could be deported. They failed not because of consideration for the stateless person … but because the country of origin nor any other agreed to accept the stateless person.” She went on to explain that because of the “undeportability of the stateless person should have prevented a government’s expelling him” the police would commit a “few illegal acts in order to diminish the country’s burden of indesirables. In other words, the state, insisting on its sovereign right of expulsion, was forced by the illegal nature of statelessness into admittedly illegal acts.” We have already seen this by the Trump Administration under their new rules. All federal immigration officers can now conduct an “expedited removal” anywhere in the U.S. against people who arrived in the U.S. in the previous two years. One critical provision allows federal agents to send people back to Mexico, even if they’re not from that country. However this requires Mexico’s cooperation, and Mexican Foreign Minister Luis Videgaray said “Mexico will vigorously fight U.S. mass deportations of undocumented immigrants back to Mexico and refuse to accept any non-Mexicans expelled across the border.”
So where does that leave the undocumented resident who is stateless? Their legal rights to remain in the U.S. have been stripped away; they have no country to be deported to, and no path to becoming a legal resident anywhere. Are they to be held permanently in jail until they die? Will they be released and be marked as non-citizen with no rights? And what happens to the county if or when this happens?
Hannah Arendt spelled it out quite disturbingly; “For the nation-state cannot exist once its principal of equality before the law has broken down. Without this legal equality, which originally was destined to replace the older laws and order of the feudal society, the nation dissolves into an anarchic mass of over – and underprivileged individuals. Laws that are not equal for all revert to rights and privileges, something contradictory to the very nature of nation-states. The clearer the proof of their inability to treat stateless people as legal persons and the greater the extension of arbitrary rule by police decree, the more difficult it is for states to resist the temptation to deprive all citizens of legal status and rule them with an omnipotent police.”