Rejecting the spectacle

Donald Trump won last month’s election by vowing to exact retribution against many groups for offenses that are almost entirely imaginary. When it came to targets, among his favorite was immigrants. He directed hate at them, conjured hate from his supporters in response, and generated fear in vulnerable communities.

In light of this campaign, there’s a current widespread fear that the U.S. will establish a new concentration camp system for immigrants. Americans who want to protect their immigrant neighbors are trying to understand how vicious threats of spectacle and violence might unfold as reality next month and beyond. Today, I want to address the past, present and future of immigration though a lens that sheds some light on how the U.S. has wound up publicly embracing harm on a national scale against some of the most vulnerable people on the planet.

For decades now anti-immigrant sentiment has been a political weapon used by members of both parties, but Republicans have driven the policies and rhetoric deeper into inhumane territory. Today, I’ll consider where we are now, how we got here, what’s likely to happen, and what’s it’s possible to do.

Enemy aliens abroad

In the first decade of the twentieth century, anti-immigrant groups had pushed the idea of dangerous foreigners on both the American and British public. In England, anti-alien groups tried to strip foreigners of rights even in peacetime, with a particular interest in limiting Jewish immigration.

Blackstone’s Commentaries on the Law of England had codified the category of “alien enemy” back in 1766, crystallizing centuries of British common law to say that “alien friends” have rights, but “alien enemies have no rights, no privileges… during the time of war.” But the surge of anti-immigrant legislation put the concept of discriminating against foreigners into law in new ways, with many new legal restrictions put into place at the advent of World War I.

At that point, existing anti-immigrant sentiment targeted even foreigners who had lived peaceably in England for decades. By the end of the war, popular sentiment in the U.S., too, had turned against German Americans, one of America’s biggest minority populations. In both cases thousands of “enemy alien” civilians were locked up, with more than 30,000 internees held in detentions in the U.K. in 1915.

This process happened during World War I in Germany, too. I’ve talked before about how Adolf Hitler’s preoccupation at the end of World War I—more than a decade before he came to power—was with changing the legal status of German Jews so that they would have no more rights than aliens, so that Jews would be treated as immigrants. Hitler specifically cited the Alien Laws and wanted them applied against Germany’s Jewish population.

In November 1938, almost a year before Hitler invaded Poland and launched World War II, the government of Edouard Daladier in France issued a decree allowing for the detention of “undesirable” foreigners. Across France’s mountainous southern border with Spain, Republican forces were locked in a civil war with the those of dictator Francisco Franco. In early 1939, when the Spanish Republicans were thrown into massive retreat, some 475,000 crossed the border on foot in winter into France as refugees.

The government was deeply threatened by the idea of its southern cities being swamped by foreign leftists, and decided to isolate most of the men by exiling them into concentration camps in remote and poorly sited areas with no housing and sometimes limited access to fresh water.

Around the world, laws stigmatizing aliens normalized the detention of groups that could be shoehorned into this “undesirable foreigner” category, particularly targeting vulnerable refugees and those fleeing persecution—and no longer limited to wartime enemies.

These are just some of the ways that immigrants were relegated to mass civilian detention without trial in the first half of the twentieth century, when it became a perfectly normal thing to do.

Aliens in America

Like the U.K., the U.S. has its own messy history of dealing with enemy aliens that dates to the 1700s. America passed its own Alien Enemies Act in 1798 as part of the Alien and Sedition Acts. Most of these acts were repealed before Thomas Jefferson’s presidency ended.

But the 1798 Alien Enemies Act endured, allowing enemy foreigners to be detained or deported without trial. Used repeatedly against people who committed no crime and weren’t even suspected of criminal activity, this was the basis on which immigrants from countries at war with the U.S. were held in concentration camps during World War I and World War II.

When Franklin Delano Roosevelt’s wartime administration rounded up some 120,000 people of Japanese descent during World War II and put them into camps, it’s important to note that most of these residents had not only been in the U.S. for many years, the vast majority of them were also American citizens. The fact that the Alien Enemies Act clearly applied to subjects or citizens of enemy nations was rationalized to cover the detention of these American citizens alongside foreign nationals.

Alien “enemies” today

The Alien Enemies Act of 1798 is the law that the incoming Trump administration is citing as the central authorization for the massive deportation program. The Act sets out the ability to impose detention and deportation in the face an “invasion or predatory incursion” by a “foreign nation or government.” 

In the past individual U.S. states have brought court cases claiming that immigration constitutes the “invasion or predatory incursion” mentioned in the act. Those cases were dismissed by the courts, but the judges involved didn’t rule that the Act couldn’t be applied to immigrants. Instead, they argued that courts didn’t have authority to judge whether an invasion was underway, leaving these matters to the executive and legislative branches.

So against this context of concentration camps established in the past under the Enemy Aliens Act, the incoming Trump administration is talking about using exactly this law against civilian immigrants outside of wartime. While we should not give any ground in this “invasion” argument, which is dishonest, we should also not assume that the courts, which have previously left this question to the executive and legislative branches, will defy Trump.

The Trump administration has other tools at hand, too, including the Undesirable Aliens Act of 1929, which made it possible to charge immigrants criminally for crossing the border. This law that was the bedrock argument used by Attorney General Jeff Sessions to maximize criminalization of border crossings during Trump’s first term.

During that term, the U.S. Supreme Court sided with the president on what was popularly known as the “Muslim ban,” which barred citizens entering the U.S. from five mostly Muslim countries, along with as North Korea and Venezuela. The law in question in that case was the Immigrant and Nationality Act. But in her dissent, Justice SoniaSotomayor drew direct parallels to the ways in which Trump’s stated intent to discriminate had been papered over, comparing the court’s decision to its rationalizations of Japanese American internment during World War II.

She wrote, "History will not look kindly on the court's decision today — nor should it."

History of Modern detention

But immigration policy is not only some panoramic conceptual argument—it takes place out on the ground. So to talk about how it has unfolded in the past and is likely to play out now, I reached out to Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.

In terms of the past, he noted that that the rise of deportation and detention is bipartisan. And he also talked about how after the closure of Ellis Island in the 1954, the U.S. didn’t have significant capacity for immigration detention again until Ronald Reagan took office.

That change came in response to an influx of Cuban and Haitian refugees, and in 1981, Krome Detention Center, the first modern facility for immigrants, was established in Miami. The same year, the New York Times paraphrased Attorney General William French Smith as saying that detention of aliens seeking asylum was necessary to discourage people like the Haitians from setting sail in the first place.

After detention as deterrence from seeking asylum became policy, the combination of detention and the border has existed continuously ever since. But capacity has consistently been an issue, so there have always been releases of detainees.

Guantanamo, again

From my own earlier research, I knew that the flight of Haitians from massive instability in their home country also became the spur for the use of Guantanamo Bay Naval Base in 1991 for massive detention of civilians without trial. By capturing refugees at sea before they could reach American shores, the government could reduce the number likely to gain asylum.

I’ve written before about Guantanamo’s evolution from immigration detention to a concentration camp holding facility for the war on terror, a shift made possible by the gray areas in immigration detention that have persisted for a century now.

It’s a sign of American preoccupation with race that for the purposes of political drama, Haitians are often singled out as public targets of these policies, from the Reagan era and 1990s Guantanamo to Springfield, Ohio, during this year’s campaign—when candidates Trump and Vance both condemned Haitian refugees in the U.S. legally, accusing them on the national stage of crimes they hadn’t committed.

I spoke out publicly during the first Trump administration about border detention and family separation policies to say that this punitive approach to mass detention echoed concentration camp history in ways that made it hard to distinguish from past human rights abuses in similar camps. Consistently in the U.S. and in many places around the world, there has often been a back-and-forth and fine lines often crossed that allow what appears to be unconstitutional arbitrary detention, as long as it is done to immigrants.

What’s more, recent talk by Trump allies about the southern border and incursions into Mexico to punish drug cartels could easily play into these muddied distinctions. This is a ridiculous and dangerous idea to float even as a trial balloon. But there are are few better ways for a problematic leader to consolidate support than to generate a border conflict, and few topics more effective to posture over in the U.S. than immigration and drugs.

What Trump is threatening

How are immigrant detention and deportation most likely to take place in a second Trump administration? Incoming officials have mentioned deporting tens of millions of immigrants, making threats against undocumented people as well as many who are currently here legally.

Reichlin-Melnick suggests that broadly speaking, two approaches are emerging among senior incoming personnel. There is the Stephen Miller vision, which is more radical, and Tom Homan’s strategy, which seems more like the current model—but with an intensification of tactics.

Neither would be good news for immigrants. But if Miller’s “categorically different” vision prevails, conditions for immigrants could unravel more rapidly in more directions.

In either case, any plan to increase arrests and detentions will hit bottlenecks. Reichlin-Melnick listed several areas that will likely lead to delays and challenges in 2025.

Bottlenecks in the plan

An early hurdle is the staggering budgetary request that’s being discussed: $120 billion, more than 2 times the entire budget of the Department of Homeland Security. But even if that funding request were to be met, there will be challenges.

Reichlin-Melnick outlined several steps necessary for each deportation, beginning with arrest and continuing on to detention, legal processing, and actual removal. There are obstacles and delays in the system, both legal and logistical.

Logistical challenges include adequate detention facilities to hold people going through the deportation process, both in terms of physical space, medical staff, guards, and administrators.

“You cannot come in on the first day and suddenly have 40,000 new beds available to put people in, he says. “That’s just not how the system works.”

You have to have a legal order, and that creates a docket, with a backlog of years in many cases. Transportation is also an issue: Reichlin-Melnick noted that ICE currently has thirteen planes that they use to carry out removals. He further explained that currently, the government has to shuffle people from one detention center to another to meet contract bed minimums.

To ramp up transportation capability for massively expanded detention, he says, “You need people with commercial driver’s licenses, and there’s a shortage of people with CDL in the U.S. right now.”

On the diplomatic front, too, planes cannot simply land wherever the U.S. government wants them to. Deporting immigrants to other countries requires agreements and negotiations. It’s hard to say exactly where the biggest bottlenecks will be, but these challenges are very real. Which is not to minimize what we’re facing.

“We know that the question is not whether they’re going to attempt mass deportation,” Reichlin-Melnick says, “because of course they are. The question is how fast can they move and how much can they increase the capacity of the system. Right now, the system is so overloaded that the capacity is actually quite low.”

But he added that “If the Stephen Miller vision prevails, and they start deputizing national guards and deputizing local sheriffs to arrest people, and really expanding the numbers of people who do have the authority to carry out arrests, you could very significantly start increasing arrests.”

He notes, however, that authorities would still run into the basic physical reality of available detention beds.

“Innovations” in detention

This kind of mass detention would be the scenario that would more closely begin to approximate concentration camp history once again. Just-in-time detention and outsourcing of tasks were aspects I noticed in camps from the 1970s and 1980s in South America, as well as at black sites in the War on Terror, where even interrogation was often outsourced to civilian contractors.

These business principles have been in play with immigration programs for some time now, too. Enforcement may be expanded to others who will be authorized to make arrests. Detention is already a patchwork of private and public sites, with some kinds outsourced to unusual venues.

This atomizes and disperses enforcement, making it harder to know what’s happening and to stop policies from being implemented by several different actors in a wide range of settings. And it can make private companies and local jails alike dependent on the money they receive for detaining immigrants. In the U.S. case, it becomes more difficult to roll back this kind of detention once it’s become lucrative for local officials and businesses.

Fighting back

But that’s not the same as saying there’s no way to fight back. State and local leaders from Austin to Oregon under the first Trump administration cut contacts and agreements with ICE, refusing to take part in increasingly punitive border policies. And as I mentioned on a prior episode, several governors have already come forward to say they will work to protect immigrant populations from arbitrary abuse and detention when Trump returns.

On another front, the first Trump administration adopted a “blank spaces” policy so that any fields left blank in some asylum and visa applications would result in immediate denial, even if the fields were left blank because there was no relevant information to provide. In another example of people refusing to accept Trump policies at face value, a group of asylum seekers and visa applicants brought a suit against the U.S. Citizenship and Immigration Services and won their case. The “no blank spaces” policy was eliminated and barred from reintroduction.

One example of public action entirely outside the legal system is the June 2019 walkout of Wayfair employees to protest the company’s sale of furniture to detention facilities under the first Trump administration, during a time when abusive conditions and family separations were publicized. The story was covered nationwide, bringing massive negative attention to a private firm profiting from policies harming immigrants.

More recently, Governor Greg Abbott signed an executive order requiring hospitals in Texas to ask patients about their legal status. In response, Texas cardiologist Tony Pastor posted on TikTok to remind immigrants that they do not have to answer this question. In retaliation, Abbott threatened Texas Children’s Hospital, where Pastor works, with the post soon being removed. But the takedown itself got additional news and drew attention to the legal right that immigrants have to not respond.

One issue in the current system is that policy has stagnated in ways the public has largely missed. As an October report from the American Immigration Council explains, “It has been 38 years since Congress last provided a path to permanent legal status for most undocumented immigrants.”

But the immigration system that Americans imagine, Reichlin-Melnick suggests, is something quite different. A lot of citizens don’t realize that, under current law, there is no way most undocumented people will ever be able to fix their paperwork. There’s nothing they can do to get a green card. If you actually explain to the public what the situation is, people tend to want that system that they thought already existed.

When the media asked without any context about deporting undocumented people, some 40 percent of people in an Election Day exit poll approved of deportations. Yet far more, a majority of 56 percent, wanted undocumented people currently in the U.S. to be given a path to legal status.

Most people, says Reichlin-Melnick, want a system that kicks out the bad people and lets the good people stay. It’s a complicated effort to do that and balance rights. But the system people most think is in place is not the one that actually exists.

What you can do

On a broader scale, he noted that it’s critical to make a case for why we should treat immigrants humanely. But there are other things you can do, too.

If you’re a lawyer or speak Spanish if you speak another relevant language and want to assist, the American Immigration Council has an Immigration Justice Campaign, which you can participate in remotely or in person. There’s a mentorship process, and you can check it out at immigrationjustice.us. Reichlin-Melnick also recommended looking into similar projects established near regional and local detention centers around the country, which often need help.

The council put out an article this month addressing the critical nature of guaranteeing rights at the state and local levels, and how those rights make a huge difference to immigrants that could be pulled into deportation efforts.

On a legislative level, you can work to establish protections for immigrants where you work and live. Measures are already in places in many locales, like Washington and Colorado—and even individual cities like Denver. These laws limit how information is shared or even gathered, with a goal of securing privacy for immigrants along with everyone else. Such protections can help keep people from being identified, targeted, or deported.

And states like Washington, as well as communities like Denver and Long Beach, have adopted legislation to fund immigrant legal services. Even among immigrants wanting to actively pursue their cases, having legal representation makes a defendant nearly five times more likely to prevail.

The bigger picture

My sense is that people who oppose punitive policies toward immigrants should continue to address these issues on the meta level of decency and humanity, and should continue to reach out to their representatives in Washington. That’s a starting point and an important marker for elected representatives to put down (some of them have so far been unwilling to do so, though many have). That public stance on the national stage may peel off some people unwilling to be associated with the cruelest elements that are brought to light as we move into a more brutal period.

But what’s done locally is critical. It’s harder to ignore the reality of these policies on the ground, where arrests and detention will be happening. Make those stands not just on social media for your virtual audience, but also in ways that will reach your physical community. Even where the actions may eventually be defeated, they’ll rally other people and call attention to mistreatment.

And take action to support immigrant communities in direct ways with basic services, too. The more integrated immigrants are in the places they live, the greater everyone’s likely resistance to their removal from the general population.

While the toll on immigrants is the facet to focus on here, immigrants are far from being the only targets of the next administration. Anti-Black racism persists, misogyny persists. But most officials no longer embrace white supremacy or the subjugation of women directly and openly—they obfuscate and cover their tracks. Bigotry against immigrants, however, is a prejudice that has never fully escaped legal and public endorsement, and there’s much less social cost to expressing it.

It’s this bigotry that allowed camps to flourish and find quasi-legal loopholes for existence across the twentieth century and into the present. For reasons both moral and practical, we have to take this issue on. It’s a deeply American prejudice that sustains all the others and allows them to return again and again.

 [Please subscribe if you’d like to receive future posts like this one via email. There are free and paid options.]