William Barr, President Donald Trump’s nominee for attorney general, showed during his confirmation testimony Tuesday before the Senate Judiciary Committee that he’ll be a loyal foot soldier for Trump’s aggressive immigration agenda.
Barr (predictably) defended Trump’s demands for a “wall” at the US/Mexico border; decried “sanctuary cities” (and claimed with no evidence that they entice criminals to come to the United States); and said that because most asylum seekers coming to the US don’t ultimately prevail, it would be better to process their applications without letting them enter the country to begin with.
As George H.W. Bush’s attorney general in late 1991 and 1992 (as the president was fighting off a primary challenge from the populist right in the form of Pat Buchanan) Barr pushed an aggressive “law and order” agenda on both immigration and street crime. His hawkishness surprised a lot of observers at the time, but the Republican Party has come around to meet him.
Some of Barr’s rhetoric about immigration from that time — like blaming it in part for the LA riots of 1992 after the acquittal of officers involved in the beating of Rodney King — sounds about as racist as some of the things Trump has said about immigrant rapists and murderers. Barr sounded much less incendiary on Tuesday, but it’s unclear if he’s mellowed with age or if he simply sounds different in a Senate hearing room than when defending his administration to the press (something that Trump’s Cabinet officers are expected to do as often as possible).
Back in the 1990s, the Attorney General had direct control over immigration enforcement. That’s no longer the case; with the creation of the Department of Homeland Security, Barr’s jurisdiction will be limited to running the immigration courts and determining legal rationales for other policy decisions.
Sessions managed to use the latter power to make the DOJ a nerve center for immigration policy. If Barr is inclined, he could go as far or further than Sessions did — after all, he appears to be more inclined to agree with Trump on other topics, which could make him more influential in the White House than his predecessor.
It’s not clear if Barr wants to lead on immigration, or simply follow the policies the Trump administration has already committed to. Questioned by Sen. Mazie Hirono (D-HI) about the constitutionality of birthright citizenship (which Trump has made noises about rejecting), he claimed not to have studied the issue — which could be a way to dodge a controversial issue during a confirmation hearing, or could indicate that he hasn’t kept up to speed with new frontiers in immigration restrictionism circa 2019.
He won’t need to do much catching up if he just wants to fall in line behind Trump, though. The president’s obsessions with physical border barriers and immigrant street gangs are better suited to 1992 than to 2018, anyway.
Barr’s AG legacy: border barriers, more agents, and a focus on immigrant crime
Because Barr came into office at the end of 1991, some observers expected him to be a “caretaker” who’d keep a low profile. He was anything but.
His primary focus was on domestic law enforcement, particularly street crime — this was, after all, during the peak of the crime wave of the late 20th century. But at the time, immigration policy — under the Immigration and Naturalization Service — was also the Attorney General’s responsibility.
Barr was extremely concerned about the influx of unauthorized immigrants into the US (largely Mexican immigrants looking for work) that ultimately grew the unauthorized population to 2 million to 4 million by the time Barr and Bush left office in 1993.
In retrospect, of course, this seems extremely low; since the mid-2000s, the unauthorized population has consistently held at 11 million to 12 million (thanks to the immigration wave of the 1990s and 2000s and the passage of a 1996 law that made it much more difficult for unauthorized immigrants to legalize). At the time, though, it was seen as an alarming failure of border security.
Barr rolled out a multimillion-dollar plan to beef up security in the San Diego/Tijuana area where crossings were then concentrated. One component of that plan: building a steel fence with the assistance of the Department of Defense. (Migrants were unimpressed; a few days after Barr gave a speech in San Diego announcing the new funding, a group of migrants had dug a large hole under the steel fence.) The San Diego/Tijuana area started a border-wide trend of building physical barriers to prevent crossings in populated areas — funneling immigrants toward the Arizona desert and, more recently, gang-controlled crossings in the Rio Grande Valley.
At the same time, he shared Trump’s concern with immigrants in the US committing violent crime. Barr hired more than 100 Immigration and Naturalization Service investigators to go after “criminal aliens involved in street gangs.” He was much less impressed with the INS officials who were responsible for facilitating legal immigration; after leaving office in 1993, he complained to David Gergen (then of US News) that his attempts to overhaul the agency had been stymied, and endorsed things like placing agents at foreign airports to check travel documents (since implemented) and “summary deportation proceedings to weed out patently phony claims for asylum.”
During a June 1992 interview with the LA Times, in the aftermath of the riots after officers were acquitted in the Rodney King beating, Barr, unsolicited, blamed immigration as one cause of the unrest: “The problem of immigration enforcement — making sure we have a fair set of rules and then enforce them — I think that’s certainly relevant to the problems we’re seeing in Los Angeles.” (Relations between LA’s black and immigrant communities, particularly its Korean community, are definitely part of the story of the LA riots, but Barr’s stance that insufficient immigration enforcement was to blame wasn’t widely shared.)
The keep-’em-out strategy Trump is pushing on asylum seekers rests on Barr’s precedent
The most urgent problem facing Barr, as far as Trump’s concerned, is the continued entry of families at the US-Mexico border — and the fact that if they seek asylum, the US can’t simply refuse to allow them to enter. The administration is working with the Mexican government on an agreement that would force asylum seekers to wait in Mexico while their applications were processed, but Trump has repeatedly expressed a willingness (even an eagerness) to shut down the border to them entirely.
Those proposals rest on questionable legal ground at best. But the best precedent they have is a policy from Barr’s attorney general tenure.
In 1991, a coup plunged Haiti into chaos, and Haitians started fleeing by boat to the US en masse, with 30,000 attempting to come by May 1992. The Bush administration mobilized the Coast Guard to intercept them; about a third expressed a desire to seek asylum, while the Bush administration fought a court case challenging its authority to deport the rest.
Then in May 1992, Bush signed an executive order known as the “Kennebunkport Order” — decreeing that any Haitian intercepted by the Coast Guard, even ones who wished to seek asylum, should be returned directly to Haiti. (In theory, Haitians were instead allowed to seek asylum at the US Embassy, but human rights lawyers at the time pointed out that would essentially out them as political dissidents and make them targets of the new Haitian government.) The policy was challenged as a violation of the legal obligation of non-refoulement — the principle that a country can’t return people to a place where they’d be at risk of persecution.
The Haiti policy wasn’t in effect when Barr (and Bush) left office — it was put on hold by an appeals court, much to Barr’s chagrin. But the Clinton administration was willing to defend it at the Supreme Court, and in 1993 the Supreme Court ruled the Haiti policy was legal — because the obligation in US law not to return people to a place where they’d be persecuted didn’t apply in international waters, and the International Refugee Convention, which held the US to the same obligation, didn’t have legal force.
The Supreme Court’s decision in the Haiti case has been raised as an example of the executive authority Trump used with his travel bans (Barr praised even the earliest, most aggressive version of the travel ban in February 2017) and with the asylum ban his administration is currently fighting to reinstitute. And it might be an important precedent as the US contemplates further aggressive moves on asylum, like the Remain in Mexico policy.
Barr could do more than Sessions — if he wanted to
Barr doesn’t appear to have Jeff Sessions’s intimate understanding of the current structure of immigration policy. He certainly lacks Sessions’ familiarity with the way the immigration system actually works now, after the post-9/11 reorganization that created the Department of Homeland Security.
But Barr doesn’t necessarily have to be an immigration savant himself to maintain the DOJ as Sessions led it: a force for legally aggressive tactics in the service of immigration hawkishness.
Under Sessions, the DOJ took the lead in implementing a “zero tolerance” prosecution policy, which resulted in the widespread separation of families at the US-Mexico border in late spring. The DOJ was instrumental in developing and pushing forward the asylum ban, which was developed quickly — with little input from the Department of Homeland Security — in late October and early November.
The post-Sessions DOJ has continued Sessions’s interest in reviewing and overturning precedents in immigration courts, especially when it comes to asylum eligibility. (According to BuzzFeed’s Hamed Aleaziz, they were particularly aggressive in discussions of the “Remain in Mexico” policy that would force asylum-seekers to wait in Mexico while their cases are processed; Homeland Security Secretary Kristjen Nielsen announced the US was implementing the policy in December, but it hasn’t yet been rolled out.)
Barr may fit in well at that DOJ — one review of his tenure under Bush praised him for his aggressiveness and new ideas, while featuring some officials worrying that he was moving too fast and promising results he couldn’t deliver. (Those are generally problems for policymakers. They do not appear to be problems for this administration.)
And indeed, if Barr wants to take an aggressive stance even with other Trump officials, he could be more successful than Sessions was — as long as he stays on the president’s good side, something that Sessions, for most of his tenure, was very much not.
Of course, staying on the president’s good side may require a lot of work on its own — and Barr might prioritize, say, protecting Trump from investigation over making sweeping changes to immigration policy. But given how aggressive the Trump administration has been on immigration over its first two years, it’s certainly notable that the more conservative option facing the new AG is to stay the course.