Can ICE Be Abolished Now?

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Donald Trump’s first official response to the midterm results was elevating Stephen Miller, the architect of his most radical immigration policies, to the role of chief of staff. This decision showed that the president has no intention of moderating his policies or abandoning mass deportations, even though they inspired many Americans to vote against Republicans.

In the first episode of Autocracy in America’s fourth season, Scott Shuchart, a former homeland-security lawyer, talks about what the new Democratic Congress can do in the next two years to reform DHS’s Immigration and Customs Enforcement, whether ICE should continue to exist at all, and what a humane—and legal—U.S. immigration policy would look like.

The following is a transcript of the episode:

Anne Applebaum: I’m Anne Applebaum. We’ve just had the most consequential midterm elections in modern history. Americans clearly voted for a different kind of government. Major change will require more than one election, but in this new season of the Autocracy in America podcast, we will ask what immediate steps need to be taken to undo the damage that the Trump presidencies have done to our political system and reverse the slide to autocracy, even as Trump himself remains in office.

Notably, one of President Trump’s first decisions following the vote was to promote Stephen Miller to be White House chief of staff. Miller who has been behind the president’s most radical immigration policies—mass deportation, aggressive rhetoric, even the separation of children from their parents. That means that reform of U.S. Immigration and Customs Enforcement, better known as ICE, becomes much more important and much more difficult.

Let’s remember that over the past 18 months, massive numbers of federal agents representing ICE invaded American cities against the wishes of local government and local police. They hauled both legal and illegal immigrants away in vans. They put them in cells. They sent them to concentration camps or to jails in foreign countries where they knew no one. In the space of just a few weeks in January, ICE officers shot and killed two citizens, Renee Good and Alex Pretti.

In Minneapolis alone, the public response to these two deaths was so extreme that it elicited a rare case of bipartisan resistance. Eight Republican senators joined with Democrats to block funding for the Department of Homeland Security until the agency reformed its immigration enforcement efforts. But ICE continued, and so did accidental deaths, injuries, and disruptions to working people’s lives.

Along the way, the agency became deeply unpopular. Sixty-five percent of Americans feel that ICE enforcement is too extreme. Fifty-eight percent oppose mass deportations. The new Democratic Congress has a true mandate to change ICE forever. Scott Shuchart is a former DHS official who resigned in 2018 and has been following the evolution of ICE and its goals. I asked him to talk about what Congress can do now.

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Applebaum: Scott Shuchart, thanks for joining me.

Scott Shuchart: Thanks, good to be here.

Applebaum: Scott, the slogan “Abolish ICE” has become very popular among Democrats, and no wonder. This has been a uniquely dangerous and damaging experiment. Is there a way that that slogan could be fulfilled and yet the functions of the system that are still required, or the pieces of what ICE now does that are still necessary, could be preserved. If you were to imagine a better running system—is there a world in which we can abolish ICE?

Shuchart: Absolutely, absolutely. There’s no reason that ICE as currently constituted would need to exist as an entity. In fact, Congress didn’t create it. Tom Ridge created it by reshuffling the department when he was the first secretary of Homeland Security. If you go back and look at the law Congress passed in 2003, it doesn't really have an ICE. There are predecessors to the pieces of ICE. You could take Homeland Security investigations, which is they look like FBI agents. They wear suits and have guns on their ankles—that kind of law enforcement investigative function. No reason that needs to be in the same office as the interior Immigration Enforcement Office. And then you take what’s Enforcement and Removal Operations. When everybody talks about ICE, what they’re talking about is the group called Enforcement and Removal Operations, ERO. They manage the detention facilities. Well, you could move that into a separate office the way the Bureau of Prisons runs prisons for DOJ, right? The alcohol and tobacco and firearms doesn’t run the prisons for the people it arrests. Bureau of Prisons runs that.

So you move detention into its own entity. And then you have case management, which is the main thing that ICE does is managing people who aren’t detained, who are going through the immigration process, where it’s important for the government to know their whereabouts in case they need to be deported at some point in the future. That can mostly be done by paraprofessionals, social workers, case managers. No reason to pay for trained law enforcement officers to do that kind of desk work.

And then you have a smaller group that is a kind of law enforcement function to go after people who are coming out of jails and prisons, other criminal risks, and a little bit of related criminal functions. But there’s no reason that that would require 10 or 15,000 armed law enforcement officers. That could be a much, much smaller law enforcement entity that could have a home in a lot of different places.

Maybe you combine it with CBP a little bit and just abolish ICE entirely. Maybe you fold some of these things, as I was saying, back into DOJ. But ICE as an institution adds no value over and above the execution of the functions. And the functions can be disaggregated and done better too.

Applebaum: So you could have, in other words, immigration enforcement in a reasonable way without the added authoritarianism and the drama and the people in unmarked cars.

Shuchart: Well, I mean, we had that two years ago, right? People still hated ICE. The problem is that we have this whole layer cake of incompetence and excesses. And if all you peel off is shooting Americans in the streets and wearing Halloween masks to do your job, you’re only back to how terrible ICE was the day that I walked out the door there. And the goal of reform has to be to be better than that, right?

We’ve gotta have an agency that’s better constituted for the mission. We have to have people who are better trained for it. We have to have resourcing. We have to have priorities. We have to have an agency that does what the American people really want interior immigration enforcement to do. It’s not as though ICE has ever been at the golden mean of that. It’s been under or it’s been over; it’s been under trained the whole time. And so there are huge possibilities for improvement based on the unbelievable level of failure that it’s reached now.

Applebaum: How can this Congress operating under President Trump realistically restrain ICE now? Is there a way that Congress can affect how people are chosen? Can we change the way we prepare them? Can Congress intervene?

Shuchart: So the fundamental problem is that through two different reconciliation bills, ICE and DHS have an enormous amount in multiyear money. The normal way the government is funded is through year-to-year appropriations, and it’s hard to put new conditions on that money unless it gets pulled back. So first and foremost, anything that the Democrats want to do with regard to ICE reform has to involve taking away the multiyear money and moving ICE back onto year-to-year appropriations that have the right strings attached.

If this Congress wants to go through and do a reauthorization bill for DHS—the way the Pentagon gets the National Defense Authorization Act every year—there are all kinds of things that could be done in terms of training standards, qualifications, disqualifications, discipline systems. But that would have to be done for the most part through substantive legislation, or if it’s done through appropriations, it has to come after getting that multiyear money back. Because right now, ICE is off to the races with about a hundred billion dollars of untouchable, no-strings-attached money. And if nothing is done, they continue to have that for two more years.

Applebaum: What would it take for Congress to do that? Would we need a major effort, or is it something that could be done fairly simply?

Shuchart: Well, everything Congress does that matters needs to be signed by the president or over an override of the president’s veto. Nobody talks about it, but the Watergate Congress created all these authorities. Congress created all these statutes that were supposed to work where the president could do something, but he had to check in with Congress, and if the committees of Congress didn’t approve, the president couldn’t do it. It was called the legislative veto.

And in the mid-’80s, the conservative Supreme Court struck that down. And so all of these statutes—like IEEPA, this authority that was used for tariffs—that were supposed to require the president to go back to Congress, don’t work that way anymore. So now there’s nothing Congress can do once the president has an authority and once the president has money, that the president doesn’t have to sign. So that’s why I say everything kind of has to be done by pulling back the money and putting in new money, which could happen, I think, through the appropriations process, but it has to be tied to something that the president has to sign. If the president’s gonna veto everything that clips ICE’s wings, then you're mostly looking at the courts as a way of holding ICE in for the next two years. Of course, one thing Congress can do is look beyond the tip of its nose and try to navigate to ICE reform, even if it doesn’t happen until 2029.

Applebaum: I’m thinking that too. Looking at how the training works, imagine that we were able to get some kind of substantive bill or that Congress was able to intervene. Are there already specific things you can suggest? Is there a way to make the system less brutal?

Shuchart: Well, you’re making me do something very uncomfortable, which is to give them a little bit of credit. But when Markwayne Mullen came in as the secretary, he did direct ICE to restore the former level of training to new ICE ERO officers. That was a Kristi Noem special to take 18-year-olds who had no experience, put them through expedited training, and then sick them on the American people in the streets.

That has been or is in the process of being walked back and the better training module restored. So it’s not as though ICE training was great two years ago, but we are at least back above the really appalling minimal level of training.

Applebaum: Even in recent weeks and months since Markwayne Mullen took over, there have still been egregious incidents. There have been mothers of children arrested on the street, children left alone.

Shuchart: For sure. I mean, there are two elements of it. One is Stephen Miller is still clearly calling most of the shots, right? I think that the department will continue to underperform because it’s under the thumb of this incredibly vicious and incompetent leader coming out of the White House.

Then there are the different layers of leadership. Secretary Mullen, underqualified as he is, clearly not the same kind of corrupt disaster that Kristi Noem and Corey Lewandowski were. Then you go another level down. ICE hasn’t had a Senate-confirmed director since the end of the Obama administration.

The guy who’s in charge right now worked at ICE, then went to the GEO Group, the big private prison company, to make his millions. And now he’s back in charge of ICE, where one of his main jobs is, of course, forking money out the door to the private prison companies. Congress could impeach him, but fundamentally the problem with ICE is that it never has serious Senate confirmed real leadership. Well, Trump isn’t gonna nominate a serious good person to run that agency. And so there’s no prospect that what will happen in the next two years is that the Senate confirms a good leader for ICE.

Applebaum: How useful is it to see charges brought, for example, against specific agents or leaders who ordered around the agents for breaking the law, for the murders, for the mistaken arrests, for the mistaken shootings. Because it certainly feels to Americans that there’s been a blanket of impunity over ICE agents. They can do whatever they want. We never know who they are. They’re wearing face masks. We never hear again about any kind of punishment. What’s the mechanism by which we hold to account the people who created this damage in the first place?

Shuchart: So a bunch of states are creating state causes of action that reach federal agents, but the single most important thing Congress could do would be to extend Section 1983 liability to cover federal law enforcement officers or other federal personnel.

Applebaum: So you’re gonna have to explain what Section 1983 liability is.

Shuchart: This is actually the law dating from the end of the Civil War that provides a cause of action for people to go into court against government officials who violated their civil rights. But it only right now applies to officials who operate, the term is, “under color of state law.” And if you just added the two words “or federal” to that statute, “under color of state or federal law,” then you would have federal lawsuits against ICE officers for excessive force, for racial profiling, things like that.

It’s a two-word fix, and it’s very important. But it’s also very important that states provide a cause of action to individuals and also that state attorneys general and state district attorneys keep going after federal personnel who are violating state law. If you murder somebody, yeah.

Applebaum: And is that—sorry, can I interrupt? Is that what happens now? Is that functioning now?

Shuchart: Well, it’s happening to some degree. Remember there was that extradition fight between Minnesota and Texas a couple of months ago about an ICE officer. The problem is that federal officials are able to invoke a federal defense if they are acting in pursuit of their federal responsibilities. That's pretty powerful. And so having federal law remedies—and frankly having a Justice Department that cares, having a Justice Department that would hold ICE officers accountable—is critical. That’s not gonna happen for the next two years. But going forward, statute of limitations are long, statute of limitations on homicide usually never runs out.

And so there are possibilities for remedies in the future, but we need stronger legal tools and then we need officials willing to use them.

Applebaum: Is there a nonlegal remedy? I mean, here I’m thinking of authoritarian countries where—South Africa under apartheid, and after the system ended, it was sometimes too difficult or too complicated to identify everybody who was responsible, or there were legal reasons that made it difficult. And so instead there were public hearings. In South Africa, it was called a Truth and Reconciliation Commission. But there was a public hearing, there was a public acknowledgement that people had been damaged, and the people who had suffered were able to come forward. Can you imagine that in America? Is that something that would begin to get to the problem?

Shuchart: You know, among the many DHS alumni who I talk to, the two terms that get bandied about are “Truth and Reconciliation Commission” and “Nuremberg.” People like me prefer the Nuremberg model, which is to say public criminal trials. I think something like a Truth and Reconciliation Commission model is a nice one. Illinois tried that. They created by statute a commission to investigate the ICE excesses around Broadview and the other parts of the Chicago area last year. And they did a really good, serious report. There was a lot of public testimony. It all happened in short order. I think recovering from the Trump administration is going to take longer than that. But I’m hopeful that even if it doesn’t happen at a single national level, we could see additional state inquiries. As a political matter, it sure doesn’t seem like a Hakeem Jeffries special to spend years on Truth and Reconciliation Commission. I personally worried that there’s gonna be a lot of emphasis on turning the page and not looking back after 2029.

And I hope that that’s not the whole of it. I hope there is space for something like a Truth and Reconciliation Commission, and I hope there are serious criminal trials.

Applebaum: I think that acknowledging what happened and making sure that people understand why it happened and making that part of the narrative of the past two years and of this administration are very, very important if you want to prevent something like that from happening again.

Shuchart: The one other thing we haven’t really talked about is damages. The Federal Tort Claims Act provides a limited avenue for victims of state violence to get recompense. There was an effort during the Biden administration to resolve a bunch of tort claims by the families that had been separated during the first Trump administration. And so another thing Congress could do—I think honestly, part of what Trump tried to do with this billion-dollar fund, or $1.776 billion fund, to pay back his buddies was to pre-delegitimate the idea of having federal settlement money for people who’ve been wronged by a prior administration. But when you look at some of the people who have been politically prosecuted by DOJ—when you look at some of the people who’ve really suffered terrible injuries from excessive force, US citizens who’ve been thrown to the ground by ICE and had permanent injuries, certainly the two Americans who were killed in Minnesota—I think a financial piece of it, whether it’s funneled through the federal tort claims statute or as a special authority like the 9/11 damages settlement fund, something like that might be in order too.

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Applebaum: Now let me ask you to step back for a second because I also see ICE as having a function over the last couple of years that’s not actually necessarily much to do with immigration at all. So the question is: What are the real problems associated with immigration? There are some, right? There was crowding at the border that requires that the state provide tents for people.

There’s a genuine issue about people not having ID in the country, people being illegal and therefore unfindable by the government. There’s a set of real issues that illegal immigration creates. And then there’s a set of, I would say, political issues. This is why in the election campaign of 2024, the president kept talking about criminals, illegal criminals, which, as we know, it turned out is a very small number of people. But the idea was to create a kind of boogeyman—these are the people who are responsible for you feeling bad. These are the people who are threatening the identity of modern America. What we need to do is create a really big agency with armed, violent men who will eliminate this threat to your identity and your safety. And it seemed to me that ICE was partly designed to fulfill this kind of political need. You know, we need to show that we’re doing something to defend Americans against this amorphous threat that they feel.

To what extent is ICE necessary? Do we need a special immigration body? Are there other solutions to the real problems of immigration, if you take a step back and ask?

Shuchart: Well, if you want to separate border security off from interior enforcement, I don’t think there’s any question that you need armed law enforcement to do border enforcement, because that’s not just immigration problem; it’s a drug smuggling problem, it’s all kinds of things. So even though border patrol needs an enormous amount of reform, I don’t think anybody’s talking about abolishing something like a border patrol.

When you talk about the interior enforcement function, most of what ICE does can and should be done by people who are more like case managers who don’t need to be armed. Most of the people in the system that ICE administers are not in detention and are going through the immigration court process.

Now there are a bunch of problems with that. Immigration court process is unbearably long. The immigration courts are impossibly backlogged. And so you would need to resource the courts, and frankly, you would need to help provide people with assistance to find legal counsel so that they can move through the system more quickly. There’s no public defender equivalent in immigration courts. Most people go through either without attorneys or scrape together everything they can to hire private attorneys, and everything contributes to delay.

Another thing the Trump administration did was it removed status by ending temporary protected status and so the number of people who need to go through removal proceedings now is actually much larger than it used to be.

So what you need is people who are managing those noncitizens as they go through the process. And if they obtain relief, great, they no longer need to be managed. “Obtain relief” meaning get some kind of legal status. And if at the end of the day they aren’t entitled to any kind of legal status, you need someone who can manage their departure. And that often does not need to be an armed agent either. Now there is also the fact that if somebody here without status, or even somebody here with legal status, who’s an immigrant kills 20 people in a bank robbery, they’re gonna go to prison for a while, and then we want them deported. So somebody has to pick them up when they finish their state prison sentence and take them to an immigration detention facility and put them on a plane and deport them. That guy’s probably gonna be a law enforcement officer carrying a gun. But that is not the bulk of what ICE does. That is not anywhere close to a plurality of the people who are in the system. So you could differentiate in that way.

Applebaum: I’m also thinking about ways of cutting down on illegal immigration or false asylum claims. I’m aware, for example, that in Poland, which is where I live part of the time, they simply declared that it’s no longer possible to ask for asylum on the eastern border. This is because there was a process of—the Belarusian government was gathering people in the Middle East, marching them to the border, and telling them to cross. There was a kind of weaponized immigration was being used to destabilize the country. Is that something we could think about? I mean: “You can't ask for asylum on the southern border”; “If you’re coming from a more dangerous part of Latin America, you should ask for asylum in Mexico.” Are there changes we could make to the way we talk and think about asylum that would reduce the problem before it became a problem?

Shuchart: That has basically happened. The Biden administration to some degree in the summer of 2024, and then the Trump administration early in 2025 really has ended the border asylum system.

The problem with that is that it’s against the law and it violates a treaty. So we are just in complete violation of the refugee protocol that we signed, that is one of the documents that came out of World War II. There appears to be a consensus in the West that we didn’t really mean it about protecting people fleeing persecution after the war, and that nobody really wants to have the burden that they committed to from the ’40s to the ’60s in signing off on these treaties.

So we could change the Refugee Act of 1980 and we could withdraw from the treaty, and then we could do all of those things. Or I what I suspect we’re going to continue to do is just pay lip service to the idea that we have a refugee and humanitarian asylum system and then just keep violating the law.

And then there are in-between things that we could do. I think one of the more well-intentioned suggestions is the U.S. has never really had a significant refugee resettlement program in the Western Hemisphere. So if you think about how the Somalis came here after the Somali civil war, right? That’s a process that the UN Human Rights Office runs where they identify people who need to be resettled. They work through the refugee program, the US refugee program to create a pathway for them to get refugee status. And when they enter the United States, they already have refugee status. They don’t apply for asylum after they come. They’re pre-processed abroad and they are resettled in the United States. So apart from a very small program that was stood up at the end of the Obama administration, we don’t do that in Guatemala, El Salvador, Venezuela, Ecuador. That’s why the only way to access the asylum system for those people is to fly here if they can.

Applebaum: Well, that’s what I’m thinking.

Shuchart: Or to walk to the border if they can’t. And so I think there are some good ideas about creating regular refugee processing centers in Colombia, in Ecuador, where there’s need. And then you can have a pretty—as a policy matter—you could have a pretty strong requirement at the border if you have this other route.

I think the biggest, most misunderstood thing about the asylum system is that for almost everybody on Earth, there is no right way to come to the United States.

For almost everybody on Earth, there is no legal way to try to come. Maybe as a tourist, but other than as a short-term tourist, there’s basically no way to come here at all. And so one of the ways to take some of the pressure off of the border asylum problem would be to create a way for Western hemispheric people to come. The problem with that, to be honest, is if you set up that office in Haiti, it’s hard to see how a huge number of people don’t qualify.

The only reason we don’t resettle people from Haiti is that we don’t resettle people from Haiti. It’s not that they don’t qualify under the statute. And so I think there are a lot of hard policy choices and legal choices there, but those are the issues.

Applebaum: Yeah, I understand that the refugee laws and the treaties that we have now were written for a time when the numbers were lower, and nobody imagined the scale of disruption and the ability of people to travel and so on and all that would change.

Shuchart: The lack of any other way to come in and the abuse of the asylum system are two sides of the same coin. A lot of people seek asylum who make more sense as economic migrants, but there is no economic migrant way for them to come. There is no guest-worker program for them to be in, so they lean into the asylum aspect because that's what’s possible for them.

Applebaum: If there were a legal way for people to come or to apply for refugee status abroad, then as you say, that takes the strain off the border and it takes the strain off airports, and it makes it a different kind of process. The question is whether that would be real or whether it would just be some kind of fiction.

But if there was a real process and if we had a you know a clear definition of what we meant by a “refugee,” and if we were sure that we wanted them to come, then it’s a way of reducing the burden on ICE.

Shuchart: Yeah, I don’t think the technocratic problem here is the big problem. I think the political problem is the big problem. I don’t think there’s any consensus on what we really want immigration numbers to be. I don’t think there’s any informed consensus on how much we want that to be skilled immigration versus unskilled immigration. And so instead we’ve created a system that functions by triage and that allows everybody to throw up their hands and say, “Well, I’m not going to make any decisions because the system’s overwhelmed as it is.”

Applebaum: Scott Shuchart, thank you very much.

Shuchart: This has been great. Thanks so much for having me.

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