Revisiting the 1996 Experiment in Comprehensive Immigration Severity in the Age of Trump

The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, unlike some of its other initiatives, most certainly cannot be fairly characterized as seeking to “deconstruct” the administrative state—involves a somewhat complicated relationship with what came before. On the one hand, the new administration’s sweeping, high-profile immigration enforcement initiatives—along with its inflammatory anti-immigrant rhetoric—mark the ascendance of immigration restrictionism to the highest levels of the executive branch to an extent that is entirely without modern precedent. On the other hand, the actual strategies that the Trump administration has utilized to carry out this crackdown, to date, have been facilitated by existing legal authority and administrative institutions inherited from its predecessors, both Republican and Democratic. Perhaps most notably, the Trump administration’s immigration strategies have deep roots in the year 1996, when a Democratic president signed into law a series of statutes passed by a Republican-controlled Congress which instituted far-reaching changes to the immigration laws that the Trump administration has relied upon heavily when developing its own immigration control strategies. A particularly prominent dimension of the 1996 laws involved the convergence of immigration control with the norms, institutions, and practices of criminal law enforcement, a convergence that has influentially been termed “crimmigration.” However, the severity embodied in the 1996 immigration legislation swept considerably further than this convergence between immigration control and criminal law. Among other things, for example, the 1996 laws established significant barriers for refugees seeking protection in the United States, limited immigrants’ eligibility for public benefits, restricted the availability of discretionary relief from removal, and established new grounds of removability for support for organizations allegedly involved in terrorism-related activities. The legislation also sharply curtailed procedural safeguards for individuals in removal proceedings and laid the groundwork for the involvement of state and local officials in immigration policing on a wide scale. Taken as a whole, the 1996 statutes approximate the opposite of the comprehensive immigration reform legislation that advocates have sought in recent years, amounting instead to a far-reaching experiment in what may be described as comprehensive immigration severity. Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.