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TrumpBeat: Immigration Arrests Are Swamping The Court System

This week in TrumpBeat, we’re trying something different. Instead of our usual opening essay, we’re jumping right into specific policy news from the week. Let us know what you think! Want to get TrumpBeat in your inbox each week? Sign up for our newsletter.

Immigration: Adding to the backlog

Trump’s agenda may have gotten off to a slow start in Congress, but his administration has moved quickly in another area: immigration enforcement. Immigration arrests during Trump’s first 100 days were up 37.6 percent from the same period a year ago, according to a report released this week by Immigration and Customs Enforcement. Roughly 75 percent of those arrested had been convicted of non-immigration offenses, but approximately 10,800 were noncriminal arrests, up more than 150 percent percent from 2016.

Trump hasn’t just vowed to arrest undocumented immigrants, however. He has promised to deport them. And that could be a challenge: The big increase in noncriminal arrests could create frenzy in immigration courts that are already overloaded with cases. “On one hand the administration is saying they have these priorities and they’re going on the worst of the worst,” said Joshua Breisblatt, a policy analyst at the American Immigration Council. “When they came out with these executive orders, all they actually did was make everybody a priority.”

When Trump took office, he inherited an immigration court system with a backlog of more than half a million pending cases, with proceedings often taking years to be completed. The situation has gotten worse since Trump took office: As of April, the backlog had grown to 585,930 cases, according to the Transactional Records Access Clearinghouse at Syracuse University. But the problem is nothing new: The lack of judges to oversee the rapid increase of immigration cases has been an issue for over a decade. According to the Executive Office for Immigration Review, there are currently 318 immigration judges serving nationwide out of the 374 positions authorized by Congress. In March, Trump requested an increase of nearly $80 million in his budget for the Department of Justice to hire 75 additional immigration judge teams. However, last year Human Rights First, a nonprofit advocacy organization, estimated that the court needs 524 judges to work through the backlog of cases.

Along with funding the additional judges, the administration could pursue efforts to bypass immigration courts in general. In a memo in February, Homeland Security Secretary John Kelly, highlighted the backlog in court cases as a justification for expedited removal, in which people can be deported without going through the usual court process. Under the Immigration and Nationality Act, anyone who arrives in the U.S. without valid documents or is apprehended within 100 miles of the border within 14 days of arrival is subjected to expedited removal. But the Department of Homeland Security has the authority to apply the expedited process to anyone apprehended in the country if they can’t show they’ve consistently been here for two years. Breisblatt said the administration’s flexibility is limited, however. “There’s only so much DHS can do without violating their due process,” he said.

Congress may soon take steps to further expand the president’s authority to enforce immigration laws. The House Judiciary committee this week considered bills that would authorize both ICE and Citizenship and Immigration Services to increase the number of deportation officers, among other provisions.

Tax policy: Hard numbers

Remember back in March, when tax reform was the next big item on the Republican agenda, and Treasury Secretary Steve Mnuchin predicted the process would be comparatively simple? That feels like a long time ago now. On Wednesday, Politico’s Ben White reported that Wall Street saw the prospects for a major tax overhaul as “all but dead” in 2017. The New York Times’s Alan Rappeport followed up with a story saying the chances for a deal were “fading.”

Tax reform’s immediate problem is the spiraling Russia-Flynn-Comey morass, which has left little space for the delicate dealmaking required to forge a tax plan. Getting a plan through Congress before the end of the year was always ambitious, especially once Trump decided to prioritize the Republican health care bill. The Russia investigation will be a further drag on both Congress’ time (especially if there end up being hearings on the Comey firing or related issues) and Trump’s leverage (especially if his approval ratings keep falling). The same problems could endanger other Trump priorities such as infrastructure spending and, possibly, health care reform.

But the truth is that tax reform was in trouble even before the latest round of wild headlines. Republicans face a simple math problem: They want to cut taxes by trillions of dollars, and they need some way to pay for it. Trump has ruled out cutting spending on Social Security, Medicare or the military, which makes paying for tax cuts via spending cuts all but impossible. House Speaker Paul Ryan wanted to raise revenue through a complicated overhaul of the corporate income tax that would have taxed imports but not exports. But retailers (who typically import many of their products) balked, and the idea never gained traction.

Trump’s solution: Forget about paying for cuts at all. When the administration rolled out its one-page tax plan last month, Mnuchin said the cuts would pay for themselves by driving faster economic growth. But essentially no economists support that analysis. And this week, Senate Majority Leader Mitch McConnell said he didn’t think that any tax deal should increase the federal deficit. If the rest of the Senate goes along with McConnell, that could make it tough to reach a deal.

The budget: Big cuts

When President Trump released his “blueprint” for the federal budget earlier this year, the Education Department looked poised to take a big hit. This week, we got a glimpse of what that might look like: According to a draft budget obtained by The Washington Post, Education Secretary Betsy DeVos is proposing hundreds of millions of dollars in cuts to programs that help public schools pay for mental-health services, Advanced Placement courses and other initiatives. Meanwhile, the administration is expected to propose big increases in spending on “school choice” programs such as charter schools and vouchers.

Don’t be surprised if there are similar leaks from other departments in the next few days as the administration’s budget process draws to a close. And even if there aren’t, we won’t have to wait long to see how Trump hopes to spend taxpayers’ money in the 2018 fiscal year, which starts in October. Mick Mulvaney, Trump’s budget director, said this week that the administration will release its full budget on Tuesday, while Trump is on his first overseas trip. Early reports suggest the budget will call for deep cuts to research spending, programs for the poor and the federal workforce.

Next week’s budget will presumably fill in the many gaps left by the outline released in March. But even with the increased level of detail, it’s unwise to take the proposals at face value. Congress, not the president, controls federal spending, and even members of Trump’s own party have expressed skepticism or even outright opposition to some of his proposals.

The budget could be significant in other ways, however. The document will include the new administration’s first estimates of future economic growth, which will offer insight into whether Trump’s budget process is grounded in realistic assumptions. Late Thursday, The Wall Street Journal reported that the administration will project the economic growth rate rising to 3 percent by 2021, well above most mainstream estimates. A rosy growth estimate would make it easier for the administration to claim that it is working toward a balanced budget, something Trump promised during last year’s campaign. (Mulvaney has said previously that the administration won’t balance the budget this year.) A budget based on unrealistic expectations, however, could be a tough sell among fiscal conservatives in Congress.

Health care: Who needs Congress?

This week, the Department of Health and Human Services released a checklist to state governors, encouraging them to take advantage of a waiver program written into the Affordable Care Act. On the surface, there’s nothing controversial about the HHS secretary reminding states about an option that’s available to them by law (or even encouraging them to make use of it). In this instance, however, it is a sign that the Trump administration is planning to push its health care agenda through, whether or not the GOP can pass a plan through Congress to repeal and replace Obamacare.

A bit of background: The ACA allows states to apply for waivers that lets them stray from the standard rules of Obamacare. That can include changes to the individual mandate requiring that most people have insurance or pay a penalty, the employer mandate that requires most companies to offer coverage to their employees, the subsidy program for some low-income people who don’t qualify for public insurance or get it from an employer, and the “essential health benefits” rules that mandate the types of care that insurance plans must cover. Some states have already made use of the program: Alaska is using a waiver to pay insurers for the most expensive people they cover, a practice called reinsurance, in order to keep premiums down.

This week’s HHS letter encourages other states to follow Alaska’s lead and set up those reinsurance programs, a move the Obama administration supported as well. But it goes a step further, also pushing for states to create so-called high-risk pools for people with expensive-to-treat medical conditions. High-risk pools aren’t a new idea; 35 states had one before the ACA became law. But they represent a fundamentally different approach than the ACA’s marketplaces, where people sick and healthy are funneled into the same insurance plans.

High-risk pools also happen to be a major provision of the American Health Care Act, the GOP health bill that the House of Representatives passed this month. The AHCA’s fate in the Senate is far from certain, but the Trump administration isn’t waiting for Congress to act: Since the waiver process doesn’t require approval from Congress, only state governments and HHS, it’s a way for the GOP to get these pools underway with or without a replacement bill, or before one could go into effect.

Republicans say high-risk pools will bring down costs for others in the marketplace. In the past, however, the pools have been expensive to run, expensive for people using them and have covered only a limited number of people. They have also been criticized for siloing people with pre-existing conditions into lesser health insurance. It’s not clear whether the same would be true today if states sought out the waivers promoted by HHS. That’s partly because there are serious limitations on their use — under the rules, states must cover as many people as they would under the ACA’s standard rules, with plans that are just as comprehensive and at no more cost to consumers. Then again, those rules only apply as long as the ACA remains the law of the land.

Kathryn Casteel is a former FiveThirtyEight staffer who wrote about economics and policy issues.

Ben Casselman was a senior editor and the chief economics writer for FiveThirtyEight.

Anna Maria Barry-Jester is a senior reporter at Kaiser Health News and California Healthline, and formerly a reporter for FiveThirtyEight.