The funding deal encourages ICE to detain fewer immigrants. Will it work?
The heart of the tentative deal reached Monday night to fund the Department of Homeland Security and avert another government shutdown before Friday's deadline isn't actually the $1.375 billion in funds for a physical barrier (President Trump's "wall") along 55 miles of the US-Mexico border.
It's funding for the detention of immigrants -- both those apprehended at the border and those arrested within the United States -- by Immigration and Customs Enforcement (ICE).
Under Trump, ICE has been vastly expanding immigrant detention, both choosing to detain more people who are arrested by ICE while living in the United States and, more recently, detaining large numbers of families and asylum seekers crossing into the US. It's been overspending its budget to do it.
The new deal is an attempt to get ICE to reverse that trend and detain fewer people, without setting a firm cap on the number of people ICE can detain at any given time after arresting them in the US (a demand Democrats had previously made but dropped Monday night).
According to congressional aides, it's designed to get ICE to reduce the number of immigrants in detention to 40,520 -- the level authorized by Congress last year -- by September 30. To give ICE time to meet that goal, though, a congressional aide told Vox that Congress is funding ICE to detain an average of 45,274 immigrants between now and the end of September.
That average is much higher than Congress has authorized in the past. It's still lower than the Trump administration's asked-for level of 52,000 beds. But Republicans are saying that the bill will still give ICE enough flexibility to detain that many people if it needs to.
It's not just a partisan fight. It's an inter-branch fight over whether the deference that the executive branch generally gets on immigration extends to budgeting, or whether Congress' "power of the purse" can force the administration to make decisions about who it really needs to detain. And while the detention deal is a new effort by Congress to rein in the executive branch, we won't know for several months whether it's worked.
Trump has pushed immigration detention to record highs
Giving ICE the money to detain an average of 45,000-plus immigrants a day would have seemed unthinkable a generation ago -- or even a year ago.
The government has a lot of power to keep immigrants in civil detention while their deportation cases are pending, or once they've been ordered removed but haven't been deported. Federal law also requires the government to detain certain immigrants who are apprehended entering the US without papers, as well as immigrants who have been convicted of certain types of crimes. Immigrants can also be detained if the government worries they're a risk to public safety or might skip out on their court dates, though they're generally eligible to request a bond hearing.
Historically, it wasn't normal for the government to detain large numbers of immigrants. That's because historically, the government didn't really have anyone who needed to wait that long.
People caught trying to cross the border were simply returned rather than being formally deported, and not many unauthorized immigrants were arrested while living in the US (which generally entitles an immigrant to a hearing in front of an immigration judge before she's deported).
When both of those policies changed, in the second term of George W. Bush through the first term of Barack Obama, immigration detention expanded rapidly.