Supercharging ICE

The most out-of-control agency is about to get far worse as the police state expands.

Image courtesy of the CATO Institute

Across social media and in immigrant communities around the U.S., the increased and highly aggressive actions by ICE have created fear, uncertainty and devastating family separations. Their tactics—which, as I wrote about last month in The Big Picture, include the agency’s unique use of facial coverings to mask officer identities— have spurred protests and resistance. After instigating the conflict, the regime is exploiting it to push for ever increasing militarization of our cities.

Unfortunately, Border Czar Tom Homan and Homeland Security Secretary Kristi Noem are just getting started, and the worst likely still lies ahead.

The regime is pushing three big initiatives designed to limit oversight, kneecap states that refuse to cooperate, and dramatically increase the number of ICE agents and detention facilities. We need to talk about each of them and how opponents of the police state are pushing back.

Destroying all oversight

Oversight is a key power of Congress. Members can hold hearings, force officials to explain themselves, and draw attention to departmental mismanagement and abuse. One important power any member of Congress possesses under statute is to visit ICE detention centers and ensure that constituents being held there are receiving proper treatment and access to lawyers.

This power has resulted in some highly public confrontations outside of ICE facilities, notably one in Newark, New Jersey where Mayor Ras Baraka was arrested and for which Rep. LaMonica McIver (D-NJ) was later charged with assaulting, resisting and impeding federal officials. These arrests and charges are over the top and meant to intimidate the opposition. Instead, they have only emboldened more Democratic Congressmembers to visit ICE facilities in their districts, particularly those where lawmakers have witnessed overcrowding and inhumane conditions, as was the case in downtown Los Angeles recently.

ICE knows that it is being watched and that it cannot brazenly overstep without immediate pushback from Democrats in Congress. To counter this, Trump’s Department of Homeland Security has launched an illegal initiative to render such visits far more administratively cumbersome and even grant itself veto power over them.

As the New York Times reported yesterday, DHS has imposed new limits on visits by members of Congress and their staff to ICE facilities. New guidance, released this month, requires much longer advance notice before a visit—increasing the time to 72 hours.

That contrasts sharply with current law, under which members can make unannounced visits to conduct oversight at ICE facilities and are not required to provide prior notice of their own intent to enter the facility. (If they send staff members in their place, they must give 24 hours notice under the law.)

As the Times also noted, DHS indicated it intends to stretch this notice period to one week. “A week is sufficient to ensure no intrusion on the president’s constitutional authority,” DHS spokeswoman Tricia McLaughlin said. She added that “any request to shorten that time must be approved” by Secretary Noem.

Think about what that means in practice. One week is also plenty of time for DHS to cover up its abuses, move detainees, or remediate poor conditions in advance of any oversight visit. People, including those wrongfully detained such as U.S. citizens, would be left to suffer at the hands of unaccountable officials with essentially no oversight for a whole week or even longer.

It gets worse. As the Times noted,

In its new guidance, ICE asserts that it has broad power to “deny a request or otherwise cancel, reschedule or terminate a tour or visit” by lawmakers or their staff under a number of circumstances that include “operational concerns” or if “facility management or other ICE officials deem it appropriate to do so.”

In other words, “Sure, you can visit, but only if you give a week’s notice, and even then we can prevent you from entering if we don’t want you to.”

This would render oversight completely toothless and meaningless.

The new guidance is already creating big roadblocks for members of Congress exercising their statutory oversight authority. Recently, lawmakers in three states were turned away from ICE processing centers after trying unsuccessfully for hours to access facilities they are entitled by law to visit. As the Times reported,

Four Democratic representatives from Illinois were denied access to an immigration processing facility in suburban Chicago where they believed immigrants were being held for days without access to lawyers.

And Representatives Jerrold Nadler and Dan Goldman, Democrats of New York, were both denied access to an ICE office in Manhattan, even as an official acknowledged that detainees were held there overnight. Both lawmakers said they requested a visit in advance.

Nadler and Goldman were expressly informed by an ICE deputy director that “we were told not to” allow them access. And another ICE official emailed a congressional office saying that immigration officials were “not facilitating any visits to ICE Field Offices or suboffices” currently because of their “high operations tempo.”

Any. Visits.

The DHS’s new “guidance” and its implementation are in direct contravention of federal law. To my knowledge, a lawsuit has not yet been filed to challenge it, but it would not be surprising if one is filed soon. That’s because in the absence of a federal court order, DHS is unlikely to budge from its flagrantly illegal position, and it knows that it can appeal any district court order and gum things up for months before the Supreme Court hears the matter.

Stripping federal funds from blue states

Certain Democratic-led states such as California have steadfastly refused to help enforce the regime’s current interpretation of immigration law, especially as the White House steps up enforcement actions at farms, factories, and even courts and schools.

In response, back in late January of this year, the administration, acting through the Department of Transportation, ordered all recipients of federal transportation funds to cooperate with federal immigration authorities.

When certain states refused, it threatened to withhold transportation funds from those states. As the Transportation Department’s website declared on April 25 of this year,

“Federal grants come with a clear obligation to adhere to federal laws,” said U.S. Transportation Secretary Sean P. Duffy. “It shouldn’t be controversial — enforce our immigration rules, end anti-American DEI policies, and protect free speech. These values reflect the priorities of the American people, and I will take action to ensure compliance.”

What “action” will he take? For starters, withholding billions in funds, as earlier threatened. As Secretary Duffy wrote in a public letter setting out the “Duffy Directive”:

As recipients of such DOT funds, you have entered into legally enforceable agreements with the United States Government and are obligated to comply fully with all applicable Federal laws and regulations….

In addition, your legal obligations require cooperation generally with Federal authorities in the enforcement of Federal law, including cooperating with and not impeding U.S. Immigration and Customs Enforcement (ICE) and other Federal offices and components of the Department of Homeland Security in the enforcement of Federal immigration law.

A consortium of blue state attorneys general immediately sued, and yesterday they were vindicated in federal district court.

As legal commentator Joyce Vance noted in her newsletter,

Today, District Judge John McConnell, Jr., dealt the Trump administration a major loss in the case, which will stymie its efforts to coerce states into supporting its immigration policies. The Judge entered a preliminary injunction that prevents the administration from withholding Department of Transportation funding from states that refuse to help the administration enforce its interpretation of immigration laws.

The regime no doubt will appeal, but the judge, having seen how this White House acts to circumvent even direct court orders, was careful to retain jurisdiction over the case to monitor compliance with the preliminary injunction, and he refused to stay his ruling pending appeal.

The White House has also been known to attempt to get around court orders by having other unnamed departments step in to do the dirty work of the enjoined departments, so everyone is watching and waiting to see what other mischief the regime will attempt. But for now, it isn’t permitted to cut off transportation funds to certain states just because they won’t go along with the enforcement actions of another department.

For now, the funds must flow. But it is a rapidly evolving matter, and the regime is bent on punishing blue states by threatening to choke off money—an ironic move, given that the blue states are the ones supplying most of the funds that keep the federal government running and already receive back far less than their residents pay in.

Funding fascism

The third development is perhaps the most troubling of them all and threatens to turbo charge ICE and its enforcement actions across the country.

To understand this threat, we need to look carefully within the pages of Trump’s “Big, Beautiful” budget. That bill contains a funding increase for ICE of $27 billion dollars, or 10,000 more ICE officers. Trump is planning to use these billions to recruit an army of masked, armed and largely unaccountable agents. This is a break-the-glass moment for our democracy, hiding within the line items of a single, massive bill.

But the bill doesn’t just add more agents. It also earmarks an eye-popping $45 billion for new ICE detention centers—enough to house 125,000 people.

It’s hard to look at that number and realize that it represents the same number of people of Japanese descent who were put inside of 10 internment camps during World War II.

Students of fascism also understand that, once such centers are built, they won’t just be used to house undocumented migrants subject to mass deportation. The regime, now caught in a horrific dance with private contractors like Erik Prince who will build and profit from these centers, will come to view them as convenient places to house and then disappear its political opponents, perhaps on their way to one of the many gulags it is now contracting with third countries to establish.

ICE is currently out of money and is struggling to operate. It hopes to gain not just a lifeline but virtually unlimited resources following passage of Trump’s Big, Beautiful Bill. Defeating the bill and stripping it of this ICE funding must become a priority for Democratic lawmakers and the public at large. Otherwise, as we’ve seen with our democracy in general, as soon as the billions start to flow in, it will become far harder to root out the rot and restore the rule of law.