This article appears in the Winter 2018 issue of The American Prospect magazine. Subscribe here.
With the midterm elections over and Democrats back in control of the House, the Trump administration will no longer be able to count on congressional Republicans to protect its nativist agenda. The new House majority comes with committee chairmanships and accompanying subpoena power.
Although the prospect of impeachment has been teased, the “I” word that features in the Democratic leadership agenda at present is immigration, which looks to be a priority for various committees. One of the first orders of business will be taking a closer look at the Trump administration’s policy of separating migrant children from their parents at the border, according to Democratic committee staffers and ranking members.
The policy drew public backlash, forcing Trump to sign an executive order in June doing away with the administration’s zero-tolerance immigration enforcement policy. Months later, reports have appeared signaling that the administration has resumed the practice.
The Judiciary Committee, with its Subcommittee on Immigration and Border Security, is expected to lead on the family-separation policy with document requests and potentially multiple public hearings. The Oversight and Government Reform and Homeland Security Committees have also signaled oversight of the policy, but are looking to avoid doubling efforts.
Not a single hearing on family separation was held under outgoing Judiciary Committee Chairman Bob Goodlatte of Virginia. And Department of Homeland Security Secretary Kirstjen Nielsen, who was called before the Senate Homeland Security Committee in May to answer for family separation, has not appeared once before the House Judiciary Committee since being sworn in.
During her Senate hearing, Nielsen repeatedly insisted that there was no family-separation policy. Months later, a confidential administration memo was released, proving that not only did the policy exist, but Nielsen herself apparently signed off on it. House staffers, who believe that Nielsen might have lied during her testimony to the Senate, want to bring Nielsen before the Judiciary Committee to discuss the policy again.
Other potential investigative targets for the committee, which will be led by Representative Jerry Nadler of New York, are performance quotas placed on immigration judges by the Justice Department; former Office of Refugee Resettlement head Scott Lloyd’s now-defunct policy of refusing abortions to migrants in ORRcare; and detention conditions faced by migrant children as well as other vulnerable populations detained by Immigration and Customs Enforcement (ICE). Congress can also be expected to review the administration’s practices for screening refugees.
The last time the House Judiciary Committee held a DHSoversight hearing was back in mid-2015. The last time the committee held a public hearing specifically about ICEwas in 2012. Now that they have the gavel, House Democrats will be able to subpoena administration officials to testify, relying on select expert supporting witnesses as well.
“What we’ve seen in Congress are hearings limited to agency leadership and one or two other civilians brought in from anti-immigration organizations that work closely with administration,” says Heidi Altman, policy director for the National Immigrant Justice Center. “It’s been an echo chamber of misleading statistics and lies, with little meaningful oversight.”
But hearings are just one of many tools available to lawmakers, who are expected to demand an avalanche of official documents, memos, and internal communications. The requests will first be made politely through a letter from the chairperson and then, if ignored, followed by a subpoena. House Democrats can threaten further reprisals when it comes to funding.
Representative Bennie Thompson of Mississippi, who is expected to chair the Homeland Security Committee, has prioritized cooperation with DHS, but has left the door open to pushing for cuts to funding should the agency resist oversight or continue abhorrent policies.
Defunding could prove particularly painful to ICEofficials, whose efforts to keep up with the administration’s bottomless appetite for migrant detention has led to steep agency shortfalls. Earlier this year, DHSquietly transferred $100 million in funding budgeted for other programs, including the Coast Guard and Federal Emergency Management Agency, to pay for thousands of new beds in ICEdetention centers. The agency recently made a request for $1 billion in funding, which Congress rejected, and continues to spend beyond its means.
Other oversight targets on Thompson’s radar are the administration’s ban on travel from multiple majority-Muslim countries, the undercutting of protections for asylum seekers, and the recent tear-gassing of migrants at the border. DHSofficials will have the unenviable task of providing evidence justifying the policies as well as defending Trump’s public statements on them, many littered with falsehoods and drenched in xenophobic overtones. In some cases, Trump’s policies, like the travel ban and termination of temporary deportation protections for hundreds of thousands of immigrants, have been contrary to determinations and recommendations made by his own administration.
A public hearing is likely the right response to Trump’s deployment of 15,000 active-duty military troops to the border just days before the midterm elections—a shameless and expensive political ploy. But on other issues, such as the troubling drop in the acceptance rate of applications for naturalization by service members, the House Armed Services Committee might be better off making private information requests and slipping in a provision when it comes time to greenlight defense spending.
Incoming Committee Chairman Elijah Cummings and other Democrats on the Oversight Committee already have their own idea of where to start investigating, having had 64 subpoena requests rejected by Republican committee chairs during the past congressional session. The Oversight Committee expects to look into allegations of political hiring of immigration judges by the Justice Department along with the inclusion of a citizenship question on the 2020 census.
A certain amount of foot-dragging and obfuscation can be expected from any administration under the microscope, but in Trump we’ve seen a different kind of combativeness. “When a committee chairman sends a letter to an agency head requesting information, you tend to listen to it because it could end in a subpoena, which you don’t want to face,” says Ur Jaddou, a former chief counsel for U.S. Citizenship and Immigration Services and the House Subcommittee on Immigration and Border Security. “At least, that’s the norm. But this administration acts far from ordinary. … They like to be the ones fighting for something, even if they know they’re going to lose. I wouldn’t be surprised if they welcomed the challenge.”
In the past, Trump has cited executive privilege to protect himself and is likely to do so again in the face of particularly uncomfortable investigations. Probes into policies like the travel ban, family separation, and decisions to rescind deportation protections for undocumented youth may be allowed to proceed, so long as they circle cabinet officials and staffers rather than the president himself or those close to him.
Some Democrats, particularly moderates from swing districts, have voiced concerns over appearing too partisan or having oversight attempts drown out their legislative agenda. “I think everybody is taking the approach that we’re not going to be like Republicans and go on witch hunts,” says one Democratic aide, who did not wish to be named.
That level of judiciousness bears a striking asymmetry to the actions of Republican majorities in the past. When California Republican Darrell Issa was Oversight Committee chairman under President Obama, he issued more than 100 subpoenas to Secretary of State John Kerry, the IRScommissioner, the attorney general, the Department of Health and Human Services over Obamacare, the U.S. Treasury Department, the Justice Department, and the National Park Service.
Go back even further and you have Dan Burton of Indiana, who issued some 1,000 subpoenas during his five-year chairmanship.
Representative Lou Correa of California, who currently sits on the Homeland Security Committee, believes that for oversight to be successful, it must be couched in pragmatic language so that it resonates broadly with the public, even on issues as polarizing as family separation.
“You don’t separate children from their parents, that’s a given. But if we’re going to debate morality, well, the president will say that kind of policy is OK, while we say it’s immoral,” says Correa. “But when you talk about inefficient spending and waste, that’s different. That’s something everyone can agree on.”
That view suggests that not all Democrats are of the same mind on how to proceed, after being in the minority for eight years. Bennie Thompson will be one of just four House Democrats in office today with past experience leading a committee. There will be a learning curve in the first few months of the new Congress, particularly for new members.
House Democrats will need to hire hundreds of new staffers to committee positions (one of the perks of being in the majority)—a process that will take weeks, if not months. “There’s been a ton of hype around oversight and to some extent that’s justified. Democrats have been waiting for this moment for a long time,” says a House staffer. “But you can’t rush this sort of thing. Expectations need to be tempered.”
Patience and self-restraint become difficult to muster when faced with damage and suffering wrought by Trump’s callous immigration agenda. But at the very least, oversight presents some hope.