The Trump administration is about to massively escalate the brutality of immigration policing. Congress, with little pushback from Democrats, has tripled the budget of Immigration and Customs Enforcement to a whopping $29.9 billion. The administration is encouraging states to build huge new prison camps for immigrants (“detention centers”) and is promising to swarm cities with 10,000 new ICE agents, more than doubling the number there are now. The most highly-publicized prison camp, Trump and his cronies have gleefully bragged, is now located on a desolate stretch of Florida swampland surrounded by alligators and designed to instill fear in immigrants across the country. The administration has made it clear that it is not confining its efforts to deporting those with criminal records, but will be on the lookout for gardeners, housekeepers, construction workers, restaurant workers, middle-school science teachers  and motherswith YouTube cooking shows, too. “If you’re in the country illegally, you’re on the table,” said U.S. Border Czar (his official title, apparently) Tom Homan. “You’re going to see immigration enforcement on a level you’ve never seen it before,” Homan has promised. “We‘re not going to be like the last administration who told ICE you can‘t arrest somebody for simply being here illegally.”

The bad news is: this will result in a police state in which armed agents are constantly demanding people’s papers. U.S. citizens will be swept up, people will die in horrendous conditions, the ranks of ICE will be filled with psychopaths and abusers as hiring standards drop. But there’s also going to be major backlash. Trump’s vicious, aggressive immigration enforcement has already soured public opinion. Public belief that immigration is a good thing has surged to a record-high 79%, and the number of people who believe there should be fewer immigrants is plummeting. Support for Trump’s approach to immigration is “particularly low with Hispanic adults, 21 percent of whom approved of Mr. Trump’s approach on the issue.” That might not sound too surprising, but one of the most notable political trends of the last few years has been the rightward swing of Hispanic voters, meaning that Trump is squandering the political gains his party made with them by terrorizing their communities. Democrats should be loud and aggressive on the immigration issue, but unfortunately many have become convinced that this is a losing issue for them and they should pivot to emphasizing Border Security. 

I’ve emphasized previously the cruelty of the Trumpian right’s approach to immigration, which I think is morally indefensible. But here I want to address a defense that the right makes of its approach, namely that they are simply enforcing the law. Confronted with the human costs of their mass deportation regime, officials like Homan will give some variation on the following response: that’s very sad, but it’s not my fault, because these people are here illegally and my job is simply to enforce the law. I think this is how a lot of the new ICE recruits, attracted by $30,000 signing bonuses, are going to rationalize the job to themselves. They will know that they are tearing families apart, keeping old people and kids in cages, destroying lives. And these things will seem tragic. Some of them may even have consciences and feel twinges of guilt. But, they will say to themselves, after all, these people are here illegally. I’m just following the law, the law says they can’t be here, what choice do we have? When mass deportation begins to look morally unconscionable, its defenders will insist that it’s simply a recognition that “a country must have a border in order to be a country” or “the law says we must do this, so if we didn’t do it, we would be violating the law.”

The idea that a country must have militarized borders in order to exist is false, as I have shown before. But so is the idea that we have to deport people in order to be in compliance with the law. If you are present in the United States without valid immigration status, the government can deport you. But it doesn’t have to. You are a “deportable” alien. But the government has the legal discretion as to whether it wants to deport all the people it has the legal authority to deport. This is an important distinction, because it means that “the law made me do it” is not an excuse. The law gives the government the right to do it. It doesn’t make it mandatory.

Now, you could say, “Well, if there’s no punishment for being here illegally, then the law means nothing.” But that’s not an argument for mass deportation. That’s an argument for a punishment, such as a fine or probation. There is no reason that the extreme punishment of deportation needs to be used. “It’s not okay to enter this country illegally. It’s a crime,” says Homan. True. It’s a minor crime. Entering the country illegally is actually a misdemeanor, like public intoxication or most traffic violations. And minor crimes deserve minor punishments. Being here illegally is not even a crime at all, but a civil infraction. You can treat violations of immigration procedures like speeding tickets, or you can treat them as the equivalent of serious violent crime. And how you treat them is a choice. 

Everyone, even the “open borders” left, agrees that it’s a problem to have millions of people here without legal status. For the right, the answer to that problem is to get rid of all the people. For the left, the answer is to find a humane, rational way to legalize that population, so that they don’t have to live as legal non-persons. A “path to citizenship” is supported by an overwhelming majority of Americans. It’s a realistic response to the fact that millions of people in the country lack legal status. Instead of taking billions of dollars away from the social safety net to create an army of cops to drag old ladies away from taco carts, we could have a more practical, humane response that adapted the law to fit the circumstances of reality, rather than using cops to impose the most extreme possible interpretation of law. 

How you respond to the presence of millions of undocumented people depends on how you see the problem. You may see it, as I do, as a problem of bad policy. We made it impossible for people to immigrate legally. For siblings of U.S. citizens applying for a green card from Mexico, the wait time to obtain a visa is often ten years at minimum, according to immigrationlawyers. But there’s demand for their labor here, and they want to work here, so people came to the country anyway. They’re not to blame for that, and if you think they are, ask yourself what you would do to provide a better life for your children. I admire undocumented immigrants, many of whom have braved incredible hardships because they care about improving life for their families. Since the crime they’ve committed is entirely victimless (in fact it’s the opposite of victimless, because the work they do provides a benefit to others), to me it seems like even if the law said you had to deport everyone, that would be grounds for changing the law, not for deporting everyone.

If the law doesn’t work, you need to adapt it. Imagine if we found a law on the books from 1840 saying that no building over ten stories could be built on the island of Manhattan. Some might say that we must enforce the law, and the only way to do so is to demolish the Empire State Building. Others would say, no, that’s nuts, if the law says to jump off a bridge, you don’t jump off a bridge, you write a different law. I am in the “that’s nuts” camp. 

But as I say, that’s even assuming that the law requires every immigrant to be deported. But it doesn’t, which makes Trump’s scheme even more deranged. Why would you do this if you have a choice? Well, you’d do it because you have a paranoid, fantastical view that the immigrants picking oranges in Florida and selling chimichangas on the streets of Los Angeles are an “invasion” that must be repelled. You can only hold this view if you are someone who doesn’t personally know any of the people you’re talking about. 

Let’s be clear then: mass deportation is a policy choice. “It’s the law” and “they’re here illegally” will not work as defenses for Trump. Nor do they justify joining ICE, and anyone who signs up to be part of this despicable project should be made a social pariah. You cannot say we are just following the rules. Everyone who takes part in this is making a moral choice. As immigration enforcement ramps up to unprecedented levels, and agents crawl all over the streets of our cities looking for innocent people to round up, we must be clear on the fact that this is not law enforcement. It’s just authoritarian cruelty.