I hesitate to engage the specifics of Donald Trump’s immigration plan as though it was a serious proposal, because it clearly is not. However, I must point out one glaring problem that people who do not have the good fortune* to have a background in administrative law proceedings like I do are missing.
Everyone right now is focusing on the wall and the possible problems with building a wall – frankly, I have no problem with building a wall, plus a moat, plus whatever is needed to secure the border. I am specifically talking about Trump’s plan to “immediately” deport all the illegals who are currently in the country – at a rate of 15,000 a day – to resolve the problem within a year or two. Now, some people have pointed out that you would have to hire thousands more ICE agents, and that it would be virtually impossible to accurately find 15,000 illegal immigrants a day, and arrest them, and that doing so would be hideously expensive. That is all fine and good.
But what people are missing is that even if you were able to overcome all these obstacles, you could still not deport 15,000 illegal immigrants a day, or anything close to it. The reason for this is simple – every person who is deported has a due process right to prove in a hearing that they legally belong in this country. Presumably, we all still believe in due process here? I mean, wouldn’t it be even more important, if we are rounding up tens of thousands of people a day, to make sure that we aren’t accidentally rounding up some of the wrong people? Wouldn’t that be a travesty if we deported a bunch of people who had no connection with whatever country we were sending them to?
Regardless of whether you agree it would be or not, the Constitution says they are entitled to due process, which is currently satisfied in the immigration setting by an administrative law judge (ALJ) hearing through the Executive Office for Immigration Review (EOIR). This is not a full fledged court hearing, but rather is a vastly streamlined process that reflects the fact that most of the people who are being deported do not require full court proceedings to dispose of their case.
That having been said, processing deportation cases still takes time. And the deportees are still permitted, after their master calendar hearing (which is like a mass arraignment) to collect evidence in their case, hire an attorney if they can afford one, submit a brief and evidence, and make their case before an ALJ. A basic primer on how the process works is set forth here.
And here is where Donald Trump’s plan becomes impossible. There are roughly 340 ALJs in the EOIR, a number that is set by statute. Right now, immigration hearings are set in four hour blocks. That represents the fact that, although the hearings often don’t take four hours, the judge should have time to read the briefs, materials, and evidence submitted beforehand at least briefly for each case. Which is why, at present – even at the paltry rate at which we are deporting people now – there is a six-plus-month backlog of cases in the EOIR.
Now let’s suppose that you dump 11 million people into the EOIR system. Doing some simple math, that means that each ALJ now has 32,352 cases to process. At the current rate, of two hearings per day, you would have immediately created in the system a backlog of 16,176 working days – or 65 years. Now let’s say that you think these lazy ALJs should be working much faster. Lets say you think they should triple their current workload and hear 6 cases a day (having some background in this area, I know good and well that they can’t, but let’s assume we keep them chained to their desks and tell them to basically not read any of the briefs). You’ve now reduced the backlog of cases you created to a whopping 21 years.
So obviously, there are some mathematical problems with the idea that you can rid the country of all the illegal immigrants over the course of a year, even if you supposed that you could find them.
And no, you can’t just hire a crapload more ALJs. People who are well suited to be judges do not grow on trees. But even if you could, you would have to hire an attendant number of additional clerks and support staff just to process these cases, plus probably a bunch more real estate just to have a place for these hearings to occur. So, basically, a reverse economy of scale would occur. The EOIR’s annual budget is already over $350M – increasing it by 100 fold (a conservative estimate of what it would cost) would turn this into a $35B annual agency, to say nothing of the fact that we have nowhere to house people at present while we are waiting for their hearings.
I don’t actually object to fairly extreme measures to secure the border, which is what most people are focusing on as the implausible part of Donald Trump’s plan. Lord knows we have got to obtain some level of control over it before we can even begin to address the folks who are here and what we are going to do with them, because otherwise we’ll be having this debate all over again in 5 years (or less). But the idea that we can deport 15,000 people a day is not a serious one and anyone who tells you differently is selling you something.
*Ha ha, just kidding, no one wants to have a background in administrative law proceedings.