Interesting Post on AILA Blog Again Misses the Mark on Advocacy During the Trump Administration

A couple months ago, I wrote an opinion blog post titled “Why AILA's 'Justice Campaign' Misses the Mark on Advocacy During the Trump Administration” [see blog]. That post addressed the newly-created “Justice Campaign” of the American Immigration Lawyers Association (AILA), wherein it listed ways it plans to oppose the immigration policies of the administration of President Donald Trump.

As an immigration attorney and a member of AILA, I share AILA's passion for providing the best possible representation to those involved in one way or another in our complicated (and often inadequate) immigration system. However, readers of my blog will note from that piece and many of my other pieces on immigration issues that my opinions on immigration policy — and politics — often diverge from AILA's official line. However, my “Justice Campaign” post focused not only on policies, but also on tactics. Therein, I advanced the argument that AILA's posture toward the Trump Administration was hyperbolic, lacked nuance, and ultimately failed to recognize that the Trump Administration may be more amenable to pro-immigration reforms than AILA is inclined to acknowledge. In this post, I will address an interesting and provocative blog post from a leading AILA member that, while interesting, shows that AILA's leadership is continuing down the wrong path of advocacy during the Trump Administration.

The post we will be examining is written by Anthony Drago, Jr., Esq., a fellow immigration attorney and active member of AILA. It was posted on AILA's think immigration blog on June 30 and titled “Will Government Employees Show Some Moxie in the Immigration Struggle?”¹

Summary of Drago's Post

Drago begins his post by taking the position that “advocates for immigrants and favorable immigration policies in this country are at war with the current administration in Washington.” After rejecting categorically the possibility that the Trump Administration's policies are fluid, rather than inexorably opposed to positive immigration reform, he urges advocates “to be ready for battle at every turn.”

Drago's post focuses on who he sees as potential allies in the war with the Trump Administration: government employees. He asks whether these employees, who “know that anti-immigrant sentiment is not only wrong but will also have serious negative consequences for America,” will oppose the policies of the Trump Administration. As an example of policies that he opposes, he noted the directive from Attorney General Jeff Sessions — who sets policy for the Department of Justice (DOJ) — to increase criminal prosecutions of immigration violators.

Drago acknowledges that officials in the DOJ “answer to the Attorney General,” and that the work of many DHS officials goes hand in hand with that of the DOJ. He concludes that such employees are “under immense pressure to oppose any positive immigration practice or policy…”

Drago's solution is to call upon government officials in the DOJ and DHS to “stand up to the anti-immigrant sentiment.” Drago acknowledges that government employees could lose their jobs as a consequence of opposing official policy, but he asks rhetorically, “at what point do compassionate people stop kowtowing and start standing up to the current administration?”

As an example for government employees, he cited to then-Acting Attorney General Sally Yates' decision to not defend what he described as the “unconstitutional Muslim and refugee bans,” at the cost of her position.

For concrete examples of what he hopes to see, he suggests that U.S. Attorneys exercise discretion and stand up to Attorney General Sessions, notwithstanding potentially binding policy guidance. He suggests that Immigration Judges should seek to, where possible, “render discretionary decisions in favor of immigrants.” He encouraged officers of the United States Immigration and Customs Enforcement (ICE) to exercise discretionary powers to release people from detention, even if to do so would be against binding policy.

While waiting to see if government employees will challenge the Trump Administration, Drago stated that AILA and other likeminded individuals must stand up to the Trump Administration “and everyone associated with the anti-immigrant trend.” He noted that it is irrelevant if they lose most of the battles, for the key is to someday win the war. He added: “and make no mistake, this is war.”

Analysis

While I cannot help but admire Drago's passion and fighting spirit, I fear that his post takes the worst parts of AILA's “Justice Campaign” and amplifies them tenfold. Unfortunately, AILA may well disagree, as it provided a link to the blog on its “Recent Postings” page. In this section, I will explain my disagreements with the post. I encourage you to read his original post along with my response and evaluate the arguments for yourself.

1. The Trump Administration's Immigration Policies Are Not Extreme

During the campaign, I expressed serious concerns with the now-President Trump's position on immigration. You will find blog posts on our site criticizing his rhetoric, his understanding of immigration issues, and his inconsistency.

Fortunately, the direst of these concerns about candidate Trump's stance on immigration have thus far not been fulfilled by President Trump. The Trump Administration is undoubtedly enforcing the immigration laws more vigorously than did the Obama Administration [see article], but there is no deportation force and no extralegal alterations to nonimmigrant and immigrant visa requirements. Although the Travel Executive Order is controversial, it is limited in scope, and the argument that it is illegal is certainly not clear at all, as was recognized recently by the Supreme Court [see article] (for the record, I believe that the Order is legal in full). Furthermore, it is important to note that the new policies have shown early signs of improving enforcement against serious immigration law violators [see blog] and in improving border security [see blog].

Even if one takes a more dour view of the first six months of the Trump Administration actions on immigration, it makes no sense to pretend that that enforcing pre-existing immigration laws enacted by Congress is a radical attack on immigration and individual immigrants. Those who disagree with the President's policies can oppose them while recognizing that they fall well within normal legal and policy parameters.

2. The Trump Administration is Inexorably Anti-Immigrant

Drago insists on multiple occasions that AILA and other liberals are at “war” with the Trump Administration. In the end, he concedes that in the course of waging this war, they may lose many battles, while claiming that these losses will not matter provided that they ultimately win the war.

To be clear, I am not objecting to the hyperbolic rhetoric in and of itself. My objection is that the hyperbolic rhetoric is detached from reality. As I noted in point one, the Trump Administration has hewed to the immigration laws in its first six months. Regarding future policies, President Trump has not only shown an interest in modernizing our immigration system and improving our employment immigration policies [see blog], but he has also noted an interest in “comprehensive immigration reform,” something that should perhaps be more disconcerting to conservatives like me than to AILA [see blog].

Thus far, President Trump has not fulfilled his campaign promise to repeal President Obama's Deferred Action for Childhood Arrivals (DACA) program, which for its noble policy goals, undoubtedly has legal vulnerabilities. To the latter effect, President Trump is in fact facing the prospect of a lawsuit from Texas if he does not repeal the program before September [see article]. It is worth noting that Homeland Security Secretary John Kelly has asked Congress to come up with a permanent solution.

I certainly do not expect that AILA will agree with as many of the Trump Administration's immigration policies as I have thus far and hope to continue to in the future. However, the evidence does not even suggest that the Trump Administration is fanatically opposed to immigrants and immigration. To the contrary, President Trump seems as fluid and amenable to influence on immigration policy as he does on most other issues (regarding both policies I support and policies I would oppose).

3. In Any Case, Hoping for Insubordination From Government Officials is a Losing Strategy

Let us assume for argument's sake that Drago's read on the situation is correct, that President Trump is waging a war on our immigration system and on immigrants, and that the only response is to engage in this war. If the battle strategy is to hope for individual acts of defiance and insubordination by government officials who have sworn an oath, then I must agree with what Drago himself seemed to concede in his conclusion: President Trump will be winning the vast majority of battles going forward.

Government employees can and should refuse to follow clearly unlawful orders. Alas, Drago does not identify any such orders from the Trump Administration. Rather, he identifies lawful policies with which he disagrees, and he then encourages government officials to defy lawful orders and directives issued to implement those lawful policies. This argument is, on one hand, fruitless and, on the other irresponsible and counterproductive. For example, if one encourages an official at the DOJ to shirk his or her responsibility to defend the legal position of the Government when that position is legally defensible, what would stop someone from arguing that an immigration attorney should sabotage his or her client's legal case if the attorney dislikes the client? Neither Drago nor I nor any upstanding member of AILA or the broader immigration bar would contemplate such a disgraceful action, but that is exactly the point. It is fair enough if a government official comes to the conclusion that he or she cannot follow an order, lawful or unlawful. In such a case, the government official should resign for this principle rather than engage in insubordination.

To be fair, Drago did cite several arenas where officials likely retain discretion in the Trump Administration. Any immigration attorney understands that our immigration system counts on Government officials acting reasonably and out of good will within the parameters of their discretion. This is true no matter who the president is. However, Drago's invocation of Sally Yates makes clear that he is more broadly encouraging insubordination. I discussed the Yates issue when it happened [see blog]. In short, she not only declined to defend President Trump's original Travel Executive Order, which had been determined by the Office of Legal Counsel to be legal on its face, because she did not personally believe it was legal, but she also instructed the attorneys at DOJ to follow her lead. Whether Yates sincerely believed that the Order was illegal or whether she merely disagreed with it on policy grounds was irrelevant. Yates's job was to represent the government's position where there were reasonable legal arguments to be made in favor of that position. Instead of doing the proper thing and resigning if she could not fulfill her responsibility (which would have been reasonable), she engaged in insubordination, and was rightfully fired regardless of one's position on the merits of her argument.

Those actions were not admirable, but improper. To encourage others to act similarly is not a strategy but rather a fantasy. Furthermore, Yates did not “pa[y] for [her decision] with her government career.” Yates, a prominent political appointee and holdover from the Obama Administration, was invariably already on her way out of government regardless and onto a lucrative private career. For whatever it is worth, Yates likely has more options for her future as a result of the publicity she garnered from her insubordination than she would have had she resigned quietly or, alternatively, continued to do her job at DOJ. The same would likely not apply for less credentialed and prominent government employees who opt to follow Drago's presumably well-intentioned but catastrophic career advice.

Conclusion

Unsurprisingly, it does not seem like AILA and its leaders are inclined to take my advice on immigration advocacy. Although I often disagree with AILA, I nevertheless find this unfortunate, as they and other more liberal groups have plenty to offer in advocating for immigrants and supporting some effective measures for modernizing our immigration system. Unfortunately, much like President Trump himself when he regales audiences with stories of his decisive Electoral College victory, AILA is choosing to re-litigate the mercifully concluded and fully resolved 2016 presidential campaign. The “war” described in Drago's post invokes less an image of a climactic struggle than it does simple virtue signaling. Unfortunately, this virtue signaling will constitute a significant missed opportunity for immigration advocates for however long it persists.

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1. Drago, Anthony. “Will Government Employees Show Some Moxie in the Immigration Struggle.” AILA. June 30, 2017. http://www.thinkimmigration.org/2017/06/30/will-government-employees-show-some-moxie-in-the-immigration-struggle/ [link]