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Trump's Justice Department Aggressively Changed Immigration Policy. Now It's Biden's Turn

By Steve Goldstein
Published: Monday, February 1, 2021 - 12:04pm
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MARK BRODIE: In its first couple of weeks in the White House, the Biden administration has attempted — via executive action — to reverse some Trump administration policies, including on immigration. But there are others that will be extremely challenging to change. And though immigration is a priority of President Biden's, it doesn't top the list as it did for President Trump. Using executive authority was a consistent technique for the Trump administration on the issue. In a new report for the Migration Policy Institute, Sarah Pierce looked into how aggressive attorneys general under Trump were when it came to immigration. She spoke with my co-host, Steve Goldstein, about that approach.

SARAH PIERCE: The Trump administration really leaned into executive authority as much as they possibly could. They did so with a lot of intentionality and at an extremely fast pace. So while we've seen, you know, in the past before the Trump administration, administrations continually leaning to executive authority on immigration, the Trump administration really accelerated that process, which is why, you know, more than 400 executive actions on immigration occurred during the Trump administration.

STEVE GOLDSTEIN: And what sort of a difference, from a practical standpoint, did that make when it came to how policy was developed, how cases were treated?

PIERCE: It means that the Trump administration was able to make widespread changes to every part of the immigration system. They made it more difficult to legally immigrate to the United States. They made it significantly more difficult to apply for asylum in the United States. They sped up significantly immigration court proceedings and increased the number of deportation orders that were issued. So by leaning into that authority that the executive already has, they were able to pretty radically change the U.S. immigration system.

GOLDSTEIN: How dramatically different was that from what we saw in other administrations? Certainly when it came to headlines, when it came to the opportunity to talk to folks like you, it was clear this was much more impactful. But just how dramatic a shift was it? Was it really like whiplash?

PIERCE: For the institutions and the immigration system itself, it is like whiplash. And because it was entirely done via executive authority, we're now witnessing that pendulum swing back to the more liberal and immigrant-welcoming side. I think for the larger U.S. society, maybe they didn't notice it as much, but immigration was in the news a lot during the Trump administration and continues to be so so far in the Biden administration, in part because the executives can be and are being so active on immigration. You know, changes that go through Congress, they come up in the news time and time again because Congress moves much more slowly. But the executives, if they want to lean into that authority, can do so very nimbly and very quickly and make big immigration changes that are really incredible, incredibly fast pace.

GOLDSTEIN: Were there any shifts over the course of the last four years dependent on who was in the attorney general's office? We know that Jeff Sessions was there and then President Trump decided he didn't like him anymore, and (Sessions) went back to Arkansas. And then we saw William Barr seem to have a great impact. Of course, there were also two acting attorneys general as well. Did Barr make any shift from what Sessions was doing? Was he more or less aggressive?

PIERCE: He, he didn't seem to make any shifts from what Jeff Sessions did. And that was one really interesting thing. So Jeff Sessions came into the role, and I don't think it was very surprising that he was very active in immigration, even though he was the head of the Justice Department — which is not the lead agency on immigration. We knew before Jeff Sessions took on that role that he had a very aggressive immigration agenda. So he was able to tap into this unique tool that the attorney general has, referral and review, to actively participate in the immigration system, essentially rewriting immigration law. And attorney generals — attorneys general, excuse me — after Jeff Sessions participated at the same rate. Not only William Barr, but Matthew Whitaker and Jeffrey Rosen — they all participated in immigration using this referral and review tool. It kind of seems as if Jeff Sessions set the tone for at what level that office would participate in immigration. And they kept it consistent throughout the Trump administration.

GOLDSTEIN: You alluded to the idea that the Biden administration may also be using executive authority when it comes to this going forward. And, of course, there were some in the immigration activist community who referred to President Obama derisively as the "deporter-in-chief." And, of course, Joe Biden was President Obama's vice president for eight years. What do you anticipate when it comes to this? And, and does his choice of Merrick Garland as the potential attorney general make you think one way or the other on how the administration is going to go?

PIERCE: Advocates are really pushing the Biden administration to aggressively use referral and review it to reverse what happened under the Trump administration. And indeed, there is a little bit of precedent for that. Even just looking at the Obama administration, half of the referral and reviews that were issued under the Obama administration simply reversed referral and reviews that were issued during the administration of George W. Bush. But, of course, that was a total of four referral and reviews that were issued during the Obama administration. We're talking about 17 reviews or referrals that occurred during the course of the Trump administration. So reversing all of those would be a very, very aggressive use of this authority —and expanding it even past what occurred under the Trump administration. We don't know a lot about Merrick Garland, but there's definitely not a picture of him as a strong advocate or someone who wants to start out the gate really expanding executive authority. So I would be surprised if he used it as aggressively as advocates are calling for. But, you know, we're going to have to see. After the unprecedented use that occurred under the Trump administration, I'm sure there's a lot of pressure on the Biden administration to have a response that's, that's similarly as strong.

GOLDSTEIN: If, in fact, the administration were aggressive to try to reverse what the Trump administration has done, how difficult or relatively easy would it be to reverse some of the things?

PIERCE: Well, it depends on what you're talking about. If you're specifically talking about referral and review, it, in theory is quite simple for the attorney general to reverse those decisions. I mean, that's one of the reasons the power is so potent, is it's so flexible. There are no rules. The, the attorney general could really just write on a piece of paper and reverse everything that was accomplished via referral and review during the Trump administration. As far as other executive actions that occurred during the Trump administration, I think the biggest limitation under the Biden administration will be bandwidth. Under President Trump, immigration was the top policy priority, and they worked at an unprecedented pace to accomplish all of it. Under Biden, immigration is not the top policy priority. It certainly is high up, but they have a lot else going on and a lot else that they're trying to focus on, so they're not going to be able to move at the same pace.

GOLDSTEIN: Sarah Pierce is a policy analyst with the U.S. Immigration Policy Program at the Migration Policy Institute. We've been talking about her new report, "Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review." And Sarah, thanks so much.

PIERCE: Thank you for having me.

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