Calls to Abolish ICE Are Becoming More Mainstream. Is Washington Ready for the Conversation?

The upset victory on Tuesday night by Alexandria Ocasio-Cortez has forced one of her signature campaign issues into the national conversation about President Donald Trump’s immigration policy: the abolition of Immigration and Customs Enforcement.

The push to dissolve ICE is unusual in progressive policy circles for its simplicity and clarity, not weighed down by a stack of white papers or clever incentivizing of behavior.

Adem Bunkeddeko, who nearly upset New York Rep. Yvette Clarke, similarly ran on a platform to abolish ICE, as have a growing number of progressive elected officials, challengers, and grassroots activists.

The simplicity of the solution, though, leads to a number of follow-up questions that have lawmakers in both major parties on Capitol Hill skeptical of the push to end the agency.

“‘To replace it with what?’ is the question. And I don’t have that answer right now,” Sen. Dianne Feinstein, D-Calif., who is facing a challenge from her left this November, told The Intercept while refusing to join the push to eliminate the agency.

In the last week of June, the movement to abolish ICE found its footing on Capitol Hill, as Wisconsin Democratic Rep. Mark Pocan and Washington Democratic Rep. Pramila Jayapal introduced legislation that serves as a vehicle for this demand. The bill would eliminate ICE while setting up a commission to examine alternatives.

The argument to shut ICE down revolves around its cultural ecology. The agency has become corrupted with a military mentality that doesn’t respect civilian oversight and has little effective oversight. Once an institution’s culture has metastasized, reforming it can become impossible, with the only solution to abolish it and disperse its various authorities elsewhere.

“What’s happened is as we’ve created ICE and given more and more authority with no accountability to ICE, in my opinion, it’s become a rogue agency,” Jayapal told The Intercept.

The demand to eliminate the law enforcement agency started with a push by some grassroots immigration activists — which was signal-boosted on social media as #AbolishICE — that quickly spread to a number of progressive Democratic challengers. Ocasio-Cortez was one of at least 15 challengers who made eliminating the agency part of their platform.

“ICE is now the second-largest criminal investigative agency in the United States, second only to the FBI. And the fact that they operate without the accountability of the Department of Justice is extremely concerning to us all,” she told The Intercept in May, explaining her position that it is better for the Department of Justice to oversee enforcement of those sort of matters — as it did under ICE’s predecessor, Immigration and Naturalization Services — rather than the Department of Homeland Security, which oversees ICE. Both DHS and ICE were created in the wake of the 9/11 attacks. (Ocasio-Cortez went in depth into why ICE should be abolished, and what that would mean for immigration enforcement, in an interview with Jeremy Scahill.)

The highest-profile Democratic challenger who has adopted this position is Cynthia Nixon, who is challenging incumbent New York Gov. Andrew Cuomo in the primary. “ICE has strayed so far away from its mission. It is supposed to be here to keep Americans safe, but what it has turned into frankly is a terrorist organization of its own that is terrorizing people who are coming to this country,” she said, when calling for the agency to be abolished.

Democratic leadership, however, is not so keen on Pocan and Jayapal’s legislation. The House’s third-highest ranking Democrat, South Carolina’s Jim Clyburn, was dismissive of the bill. “I don’t think it’ll go anywhere. Why would we want to eliminate the ICE agency?” he said. The fourth-highest ranking Democrat, Rep. Joe Crowley of New York, said that what the agency has been doing recently has been “fascistic,” yet stopped short of calling for its abolition. Ocasio-Cortez challenged Crowley’s position as morally incoherent, and he is no longer the fourth-ranking Democrat in the House.

Clyburn was unmoved by the argument that ICE is not accountable in its current form.

“The ICE agency has an oversight committee,” he said. “That committee ought to deal with this. There’s a need for ICE. And we should not be eliminating the agency because it needs to have oversight. Provide the oversight that’s necessary. If this House will conduct its oversight responsibilities, we can rein in ICE.”

What’s notable among the various individuals calling for the elimination of ICE is that they have yet to settle on a comprehensive alternative as to what would replace it, something which opponents of the bill in both parties brought up repeatedly in interviews with The Intercept. Moving back to an INS-like structure of immigration enforcement under the Department of Justice is one possible solution, but not everyone agrees on it.

While #AbolishICE has spread like wildfire on Twitter and Facebook, #BringBackINS isn’t exactly the new rallying cry. “This is not about going back to the INS,” Ocasio-Cortez insisted during her campaign.

Jayapal emphasized that they are not calling for zero enforcement.

“We’re not saying that you have to abolish all functions of ICE, but we used to have all those functions before ICE got created. So I believe that we need to start again with how we have accountable, transparent immigration enforcement,” she said.

“We need to start again with how we have accountable, transparent immigration enforcement.”

But she was hesitant to call for an INS-like structure or formulate any concrete replacement for ICE. “I think there’s different ways you could structure it; we’re not necessarily saying what could take the place of it. But what we’re trying to say is that this is a moment when we’re seeing the abuses of ICE with no accountability, with more and more money that is being wasted instead of really looking at the most cost-effective and humane ways,” she said.

Democrats, of course, have time to hash out what a new immigration policy would look like, as Trump and the GOP Congress have no plans to pass the Pocan-Jayapal bill, meaning 2021 is the likely first opportunity Democrats would have to legislate on the issue.

Rep. John Larson, D-Conn., a senior Democrat in the chamber, worried that eliminating ICE without fully thinking through the alternative would leave immigration enforcement in the hands of Attorney General Jeff Sessions, a notorious xenophobe. “I think there’s always merit to looking at any agency, especially given the most recent events,” he conceded. “But if you go back historically, what would you replace that with? That would be INS, and that would be under, oh, the attorney general.”

He pointed to the Trump administration’s new stepped-up border enforcement as another example of not thinking through the consequences. “We just saw what could happen with the consequences of ‘zero tolerance,’ so the removal of ICE in and of itself — what would it solve except checking a list off in terms of when it’s done? Should it be looked at? Absolutely. But what’s the solution? What do you do in place of it?” he asked.

Kentucky Democratic Rep. John Yarmuth, a progressive who is typically supportive of human rights and civil liberties legislation in Congress, was also skeptical. “I would say that it is imperative on Congress to conduct some oversight on ICE. I’m not sure I’m ready to say, ‘Hey, abolish it.’ But we need to have some very strict oversight,” he replied.

There are some potential benefits around debating ICE’s existence, even if you’re not on board with Ocasio-Cortez and Jayapal. While progressives have generally been critical of stepped-up enforcement, they mostly have not offered any alternatives since the doomed 2013 immigration reform bill. Many on the right have countered criticism of Trump’s policies by correctly pointing out that Obama’s ICE arrested more than twice as many undocumented immigrants in 2009 as the current administration did in its first year.

The debate about whether ICE should be eliminated or reformed, and what type of immigration enforcement is appropriate, would allow progressives to formulate tangible limitations on enforcement that could apply under future presidents as well — preventing a repeat of an Obama-like presidency that was far more rhetorically welcoming toward undocumented immigrants than the Trump administration, but quite harsh in its practices.

Sen. Ron Wyden, D-Ore., was in favor of evolution, not revolution, declining to endorse the calls to eliminate ICE but instead, calling for reforms. “Congress should pass legislation to sharply limit the border search exception, which gives ICE and other border officials far too much power to search nearly any vehicle, home, or phone within 100 miles of U.S. border, including the entire east and west coasts,” he said through a spokesperson. “ICE agents should not be able to take an end run around the constitutional protections that prevent other government agents from searching private homes, vehicles, and businesses without a warrant.”

For many on the right, the calls to eliminate ICE are the validation of their longtime arguments that the political left’s true goal is open borders and zero enforcement. “Unfortunately, that’s consistent with the political position of far too many congressional Democrats which is to support illegal immigration,” Sen. Ted Cruz, R-Tex., told The Intercept. “I think refusing to enforce our immigration laws and embracing open borders may be the political position of a lot of congressional Democrats, but it’s not consistent with the national security interests of our country or the views of the overwhelming majority of Americans.”

For many on the right, the calls to eliminate ICE are the validation of their longtime arguments that the political left’s true goal is open borders and zero enforcement.

His fellow Texas senator, John Cornyn, the No. 2 Republican in the chamber, also offered little sympathy to The Intercept when asked about the calls on the left to eliminate ICE. “It’s outrageous,” he told us. Sen. Steve Daines, R-Mont., agreed when asked for his thoughts on the proposal. “I think that’s ridiculous. That’s my thought,” he said.

Like Feinstein, Iowa Republican Sen. Chuck Grassley declined to support eliminating ICE because there’s no consensus on what would replace it. “Well, who’s going to control the borders?” he said. When we suggested that one alternative would be to revert to the INS, Grassley demurred. “I’m for re-organization of government, but this is stuff that takes a lot of study, so I wouldn’t even give you an opinion on it.”

Wisconsin Republican Sen. Ron Johnson laughed when asked if his fellow Wisconsinite’s proposal was a good idea. “Probably not,” he replied.

Top photo: Immigrant rights advocates and others participate in rally and and demonstration at the Federal Building in lower Manhattan against the Trump administration’s policy that enables federal agents to take migrant children away from their parents at the border on June 1, 2018 in New York City.