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Three weeks into President Trump’s shutdown, the government is unable to pay hundreds of thousands of federal workers but has been able to scrounge up the money to dramatically expand its network of immigration jails. As BuzzFeed reported today, Immigration and Customs Enforcement (ICE) is currently detaining about 48,000 people in its jails and private prisons. Only a month ago, ICE told the Daily Beast it had 44,892 people in custody.

Here’s what these numbers mean:

  1. ICE has expanded its immigration detention system by up to 7 percent since the Continuing Resolution for DHS was extended on December 7, and over the course of the government shutdown.
  2. ICE is massively overspending its appropriated budget by jailing about 7,500 more people each day than Congress’s last appropriated spending levels allowed.
  3. A daily population of 48,000 in ICE custody equals, over the course of one year, more than 400,000 people deprived of liberty inside ICE’s detention system where, in the words of one man who has lived it, “the human values of prisoners is what matters least.”

Since Trump’s inauguration, the Department of Homeland Security (DHS) has managed to achieve an approximately $1 billion budget increase for ICE’s detention and removal operations. The 48,000 people jailed today represent a nearly 40 percent growth of the detention system from the average of 34,376 jailed in 2016. But this has all happened in spite of, not because of, Congress’s exercise of its Article 1 appropriations powers. Congress’s most recently enacted spending bill, the Fiscal Year 2018 Omnibus Appropriations Act signed into law in March 2018, provided funds for ICE to jail an average population of 40,354 people, with the understanding that the funded amount would “require ICE to reduce the number of detention beds” in use before the end of the year. Yet here we are, one short-term Continuing Resolution and three weeks of shutdown later, and ICE is jailing thousands more than that amount each day.

Such brazen overspending during a shutdown has raised questions of legality under the Anti-Deficiency Act, the federal law prohibiting federal agencies from obligating funds not properly appropriated by Congress. It’s an end-run around Congress similar to the president’s threat to invoke his emergency powers to unilaterally decide how to fund construction for a massive border wall Congress does not support. The president’s 2019 Budget Request included a demand for funding for a jaw-dropping 52,000 detention beds; he echoed this request in the ransom note he sent to Congress on January 4. Because congressional appropriators have repeatedly refused to seriously entertain this demand, ICE is simply going it alone, overspending and expecting Congress to eventually make it whole.

It’s not a new tactic. The agency has a track record of bypassing congressional intent by manipulating the appropriations process. ICE has for three years running: 1) massively overspent its detention budget; 2) notified Congress of its intent to raid other DHS accounts to make its detention account whole before the end of the fiscal year; and 3) used its newly inflated detention budget as the starting place for negotiations on the next year’s bill. This three-step strategy is particularly effective for the agency because of a provision of appropriations law that gives DHS significant discretion to move money between accounts without requiring congressional approval. This past summer, for example, advocates obtained the transfer document showing ICE had moved nearly $10 million from FEMA to fill its detention coffers.

Immigration enforcement in the United States has crept steadily outside of the confines of democracy: if the White House cannot get what it wants from Congress, it will find another way, often out of sight of taxpayers and voters.

Grave human suffering results from every additional dollar spent on immigration detention. National Immigrant Justice Center legal staff see this suffering every day in the county jails and private prisons that contract with ICE. I spoke recently with a woman who endured five months in one of these jails before she was able to present her asylum claim to an immigration judge. “I actually thought I was going to die there,” she told me. She was released after winning her case and finally reunited with her nine-year-old daughter who had stayed with a neighbor, scared and alone, while ICE refused to release her mother. After her release, the mother worried for those still behind bars, especially those who suffer sexual abuse, endure involuntary labor, and struggle to communicate with their loved ones and lawyers in remote jails.

Congress’s obligation to hold the Trump administration accountable for respecting human rights goes beyond rejecting his wall. Members of Congress must use their spending powers to mitigate the harms caused by DHS’s abusive and unnecessary immigration detention system.

NIJC urges Congress to:

  1. Engage in relentless oversight of DHS’s corrupt and abusive detention and enforcement practices.
  2. Demand cuts to immigration detention and enforcement spending.
  3. Demand a statutory amendment to the next DHS spending bill to cut off ICE’s discretionary authority to raid other spending accounts to compensate for over-spending on detention.

Heidi Altman is NIJC's director of policy. For questions about this blog post, contact her via email or at 202-879-4311.