Caleb Brown: This is the Cato Daily Podcast for Thursday, February 23, 2017. I am Caleb Brown. The president has pledged to step up deportations of so-called criminal aliens, but the term itself masks some of what the president would like to do. Alex Nowrasteh, immigration policy analyst at the Cato Institute, comments.

When Donald Trump signed his big executive order dealing with the seven countries, Muslim majority countries, that he was going to prohibit travel to the United States from those countries, there was another executive order within a week or so that was not as heavily discussed or even complained about, but that was stepping up enforcement of current immigration law. Where does that stand right now?

Alex Nowrasteh: So Secretary Kelly of the DHS has recently signed the memos enacting the executive orders. What the president’s executive orders on enforcement do is they basically — they do two things. One is they unshackle immigration law enforcement in the United States, giving much larger free rein to Immigration and Customs Enforcement and Customs and Border Protection, or border patrol. And the second thing they do is they call for a huge increase in the number of ICE officers and border patrol officers. So you have sort of the two portions that you really need to boost enforcement in the U.S. You have the unshackling of them and the removal of a lot of restrictions, and you have calls for a large increase in the numbers.

Caleb Brown: Alright, so compare this to President Obama. We called him, or some people called him, I guess, the Deporter in Chief because he had engaged in quite a bit of deportations in his time in office. It’s not something that he liked to talk about, but to the extent Donald Trump even just continues what President Obama was doing, he will be trumpeting it to the skies.

Alex Nowrasteh: That’s correct. What President Obama did was more bringing in local law enforcement, sort of conscripting local law enforcement to be officers that turn over unlawful immigrants who are apprehended to Immigration and Customs Enforcement for deportation. What the Trump administration is doing is part of that. They want to increase this program called 287(g), which trains local law enforcement to be immigration agents, but the main thing in this order is basically removing a lot of the priorities for enforcement that Obama put in place later in his administration which said like you should only really target convicted criminals, people who have repeatedly entered the United States, basically illegal immigrants who are felons. What this order does is say no, everybody is now a target, essentially, except for the DACA kids. Everybody is a target. On the increase of the enforcement front, President Trump is calling for tripling the number of ICE agents, who are the ones who actually deport people from the interior of the United States. Currently there are about 5,800 agents in what are called enforcement and removal operations. He wants to increase that to 15,000. That would cost about, just in salaries, about another $800 million a year once they get that fully up and running but due to problems with expanding these programs in the past, there’s a lot of potential corruption issues so it will probably be difficult to expand it that quickly. In terms of Customs and Border Protection, he wants to increase the number of border patrol agents by over 5,000, which would be about a 25% increase in their total numbers. Just keep in mind that these numbers are currently, at their current levels, double what they were in 2004. So when you take a look at just the entire pace of the planned increase in the federal workforce to enforce immigration laws, it’s way ahead of the rest of the federal government.

Caleb Brown: With respect to border enforcement and ICE agents, what is the difference between that and what President Obama did?

Alex Nowrasteh: So well, during President Obama’s administration the size of the border patrol and ICE stayed about the same, and at the beginning he forced cooperation between ICE and local police departments through a program called Secure Communities. So if an immigrant was arrested on the local level they could be turned over to ICE for deportation. And that was really the way that he boosted immigration enforcement. But beginning around 2012 and then doubling down in 2014, the president started to put in place a lot of restrictions on the types of people that could be targeted for enforcement. So if they fell into their hands they could basically deport anybody but they really only start focusing on convicted felons, on illegal reentries, on people who recently entered the United States unlawfully, but they wouldn’t focus on lots of other people. It wouldn’t be their priorities. So what this order does is it gets rid of all those restrictions before, all of the guidance about the priorities, with the exception of DACA, so the dreamers are still not going to be touched. That’s a specific carve out. What is interesting, though, is in the Trump executive order he specifically calls for the reestablishment of the Secure Communities program, which was ended by Obama in 2014, but the memos signed by Secretary Kelly don’t do that. So we’re not sure what happened there in the middle, we’re not sure if there are some legal issues, we are not sure exactly what will happen but we could expect some other memos in the near future to actually reestablish that.

Caleb Brown: To what extent will the federal government be directly subsidizing local law enforcement for doing what is explicitly a federal job?

Alex Nowrasteh: So there are federal funds set aside through the program 287(g) to train law enforcement on the local level if they want to, to be immigration enforcement officers. But in terms of federal money set aside, there really isn’t much at all to do that. It’s basically sort of a command from Washington on these local jurisdictions to detain these immigrants for a longer period of time and to turn them over to ICE when they do release them, which certainly accounts a lot of money — costs a lot of money. To give an example, before Los Angeles County stopped participating in that program in 2012, they estimated they would have to hold these people for about twenty days before releasing them, while they would normally release them within two to three days. So that’s about 17 extra days that they would have to be in jurisdiction — I’m sorry, in custody — and that costs a lot of money. So in terms of the reimbursements from the federal government there really isn’t much. There is a program that is in place right now called the SCAPE program, but it really isn’t that much used by states and it only compensates a small amount of the cost incurred.

Caleb Brown: For conservatives who are concerned about the federal government getting its fingers on local law enforcement and directing local law enforcement to do things that people don’t like — I should say people who believe in federalism, not necessarily self-described conservatives — but how close is this to commandeering?

Alex Nowrasteh: There are going to be a lot of lawsuits about this. I mean it certainly is unclear, it certainly comes up to that edge, anyway, about what commandeering is.

Caleb Brown: Which, I mean the federal government is prohibited from commandeering local law enforcement.

Alex Nowrasteh: Yeah, the federal government is prohibited from taking over local governments and basically making them departments of the federal government. And what this is, you know, Secure Communities, would be an order, would basically be ordering local police to enforce federal immigration laws. And so this definitely comes right up to the edge of what commandeering is and probably, possibly even, goes over the edge. We’re going to see what that is in court cases going forward, but there isn’t a whole lot of federal court cases sort of about defining exactly the parameters of what counts as commandeering, because the feds do give some money to some local law enforcement, but not that much. And it’s not explicitly spelled out in the law that this money is for enforcing immigration laws. So there’s a lot of issues there.

Caleb Brown: When President Trump spoke on the campaign trail and more recently he has talked about we’ve got to get rid of these sanctuary cities, and it’s as if that is within the federal government’s purview to do that, and it just isn’t.

Alex Nowrasteh: It isn’t in the federal government’s purview to order cities to enforce immigration laws, however…

Caleb Brown: You can subsidize them away, perhaps.

Alex Nowrasteh: Yeah, you can bribe them. I mean you can bribe them with federal money, taxpayer money, and that’s what they are trying to do. So under current law there are a few Department of Justice programs that can be denied to cities and states that are sanctuary cities or states. But it’s really not that much money. I mean it’s not really going to change too many of these department’s minds. But if they pass a new law in Congress saying we are tying a huge amount of this funding and you can only get it if you get rid of your sanctuary city status and cooperate with Immigration and Customs Enforcement, then that could be an entirely different matter, in which case it will probably be legally upheld and is at least constitutionally defensible as the current statutes and current interpretations say.

Caleb Brown: The other phrase that I’ve heard thrown around, and I’m not sure if President Trump has used it himself, it is the term criminal alien. And it’s a very ugly phrase because it doesn’t necessarily refer to people who are here illegally who have committed property or violent crimes. It could refer to somebody who is just here illegally.

Alex Nowrasteh: It could. It’s important to keep in mind that merely being in the country illegally is a civil offense, it’s not a criminal offense. Now what is illegal is if you cross the border itself illegally outside of a port of entry. But it is important to keep in mind that somewhere around only half of illegal immigrants have actually done that, the other half entered legally and then overstayed. And in order for them to be criminally convicted of that it is a pretty high standard. It’s the beyond a reasonable doubt standard. So very few are actually convicted of that kind of crime. By criminal immigrants what the president and his advisers have meant and what they have said it means is basically anybody arrested on a criminal charge, anybody who might be affiliated with criminals, anybody who basically comes into the possession — or gets arrested by local police — so their definition of criminal is hugely expansive compared to the actual legal definition of the term. So you could have a lot of people who are unlawful immigrants. They haven’t committed a real violent or property crime, but they just happen to fall in the hands of law enforcement and as a result they are labeled a criminal alien, maybe because they illegally reentered the United States, and there you go.

Caleb Brown: Alex Nowrasteh is an immigration policy analyst at the Cato Institute. Subscribe to and rate this podcast at iTunes and Google Play, and follow us on Twitter, @CatoPodcast.