On January 25, 2017, President Donald Trump issued two executive orders about federal immigration law and policy. This executive order focuses on immigration enforcement policies at the U.S.-Mexico border. Consistent with his campaign pledge, this executive order states that it is “the policy of the executive branch to…secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism”. Interestingly, the President felt the need to define “wall” as “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier”. The Secretary of Homeland Security is directed to “take appropriate steps to immediately plan, design, and construct a physical wall along the southern border” and to “[i]dentify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border”. Given that there are no funds available in the current budget for the Department of Homeland Security for such a wall, it is unclear what actual actions can be taken towards building the wall without Congressional authorization and appropriations.
And despite candidate Trump’s campaign pledge that the government of Mexico would pay for the wall, U.S. taxpayer dollars will be used pay for the wall under this executive order. The executive order does require a report to the President about the amount of direct and indirect U.S. government funds provided to the government of Mexico during the past 5 years but there is no directive about changing that level of funding or linking it on the costs of the wall.
The executive order also directs the Secretary “to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico” and to assign immigration judges and asylum officers to those detention facilities. Significantly, the order ends the policy of releasing immigrants arrested at or near the border from detention, pending future hearings about their immigration status. This will greatly increase the number of immigrants detained, at significant costs. Additional detention facilities also would need Congressional authorization and appropriations.
The executive order also directs the hiring of 5,000 additional Border Patrol agents, “[s]ubject to available appropriations”. The Department of Homeland Security would have to re-allocate its current budget or seek additional appropriations to make these additional hires.
Similar to the accompanying executive order on interior immigration enforcement activities, this executive order also directs increased cooperation with state and local governments.
Finally, section 11(d) the executive order revokes the use of “parole” authority to provide temporary legal immigration status to groups of immigrants and limits that authority to individual, case-by-case decisions. Immigrants from Cuba, Haiti, El Salvador, Guatemala, and, Honduras, and Filipino World War II veterans are currently protected under this parole authority. It is not clear how what will happen to the tens of thousands of immigrants who currently have this parole status.