WASHINGTON ― When 37 Democrats cast their votes to confirm Homeland Security Secretary John Kelly in January, they did so in spite of heavy opposition to the policies he would be tasked to carry out: more deportations, a southern border wall and a travel ban targeting Muslims.
Their hope was that the former Marine general would be a moderating influence on President Donald Trump and a better option than other names floated for the post. Kelly wasn’t known for being a virulent crusader against unauthorized immigration, and he had experience with Central and South America as former head of the U.S. Southern Command. He said in his confirmation hearing that he opposed a registry based on ethnicity or religion, which Trump once floated for Muslims.
Four months later, some of the Senate Democrats who voted for Kelly are exasperated, disappointed and, in some cases, even wondering if they made a mistake. Arrests of non-criminal undocumented immigrants are up significantly, plans for a border wall are underway, and Kelly has joined Trump and Attorney General Jeff Sessions in framing immigration almost exclusively in terms of crime. He defended the now-blocked ban on refugees and most travelers from several Muslim-majority nations and joked with Trump about using a saber “on the press.”
“I think the secretary has gone above and beyond even what the president’s dictates are and I’m disappointed in the way he’s acted,” Sen. Bob Menendez (D-N.J.), who supported Kelly’s confirmation, told news.
The senator said he wouldn’t vote for Kelly if he had the chance now.
Sen. Bob Casey (D-Pa.) voted for Kelly as well, but went on to publicly spar with him over the deportation of a Honduran mother and child who had been detained in Pennsylvania. Casey wouldn’t go so far as to say he regretted his vote, remarking instead that he would “try to work with Secretary Kelly and encourage him and the Administration to move in a better direction.”
But the senator acknowledged that he’s frustrated by the administration’s decisions to deport children and families. His “hope that Secretary Kelly would be more evenhanded on enforcement … hasn’t been borne out.”
“The administration’s approach is not only wrong, but it also doesn’t make our nation safer,” said Casey via email. “When you talk to Secretary Kelly, he says he’s just following order[s] but he was confirmed to lead, not just to go along with some wrongheaded immigration approach that was cooked up during the campaign.”
Kelly, more than most figures in Trump’s orbit, illustrates the stain that the administration’s policies can leave on an individual’s public standing. The secretary has been at the forefront of both the legally contentious travel ban and the highly controversial crackdown on undocumented immigrants. His willingness to defend both has given him a reputation as the kind, respected face of draconian initiatives.
He was confirmed to lead, not just to go along with some wrongheaded immigration approach that was cooked up during the campaign.
Sen. Bob Casey
Kelly has chafed at such criticisms. He has argued that if agents of Immigration and Customs Enforcement or Customs and Border Protection encounter people who are removable from the U.S., they must work to remove them. His officials have said that even people without criminal records and with longstanding ties to the U.S. can fit that category under the law and they won’t be exempt from removal, although they were often passed over under President Barack Obama.
This focus on what the law broadly directs has come up repeatedly, including when Kelly responded to Casey’s call to stop the deportation of the Honduran mother and child.
“I say it over and over again: If the laws are not good laws, then change them,” Kelly declared during a speech in early May. “Don’t call me, or Twitter or tweet, or go to the press with outrageous stories about how we do business or why we’re deporting somebody.”
Homeland Security spokeswoman Joanne Talbot made the same point in a statement to news: “Secretary Kelly has said that if lawmakers do not like the laws they’ve passed and we are charged to enforce, then they should work to adopt legislation instead of asking DHS to ignore existing law and court orders. The Secretary— like all DHS law enforcement officers— has taken an oath to follow the Constitution.”
Kelly “firmly believes that the policies adopted by the President to secure our borders and combat terrorism and transnational criminal organization are Constitutional,” Talbot said.
Other Democratic senators still support for Kelly and say that some of their hopes for the secretary have been borne out, at least behind the scenes. At a hearing last week, Sen. Joe Manchin (D-W.Va.), who voted for Kelly’s confirmation, told the secretary that he and many of his colleagues “are so proud that you have agreed to serve in this position, makes us all feel a lot better.”
Sen. Jon Tester (D-Mt.) was similarly enthusiastic at that hearing.
“When I voted for your confirmation, Mr. Secretary ― and I would do it again today ― I said you are one of the adults in the room that I am dependent on to make good decisions for this country’s security,” Tester said. “I still believe that.”
Even one of the toughest critics of Trump’s immigration policies suggested that Kelly has been a moderating influence. At the time he voted for Kelly, Sen. Dick Durbin (D-Ill.) said he wouldn’t have backed him if the confirmation vote were “a referendum on President Donald Trump’s immigration policy.” Earlier this month, Durbin told news that behind the scenes, when senators have brought specific cases to Kelly, “he has dealt with them quickly and honestly, and that’s all I can ask.”
Even as the controversies piled up, Durbin was willing to give the secretary a bit more leeway to make his mark.
“I’ve maintained a closer-than-usual relationship with him and frequent conversation, and I think there have been forces within the administration which want to move him into a more radical position,” Durbin said. “Am I happy with everything he’s done? No. But I want to continue to work with him.”
According to Democratic House members, Kelly has insinuated in private meetings that he helped save the Deferred Action for Childhood Arrivals program, which allows some undocumented young people to stay in the U.S. Trump promised to end the program immediately and yet he still hasn’t. In March, Kelly repeatedly told House Democrats that he was the “best thing that ever happened to DACA folks,” Rep. Tony Cárdenas (D-Calif.) said at the time.
Kelly’s critics say no one should be surprised by the early results of his tenure. Sen. Kamala Harris (D-Calif.) was one of 11 Democrats to vote against his confirmation. Her staff emailed other Democratic senators ahead of the vote to note that at his confirmation hearing, Kelly hadn’t committed to not sharing the personal information of DACA recipients with ICE or to shield them from deportation.
She told news that those concerns persist today, as do concerns about the travel ban, standards for hiring border patrol agents and Kelly’s “ability to manage the department as it relates to giving clear guidance to the tens of thousands of people that work in that department about the policies of the administration writ large and his policies as the director of that agency.”
Whether surprising or not, Kelly’s actions are disappointing to immigration reform supporters who had been cautiously optimistic about him. Rep. Luis Gutiérrez (D-Ill.) said that Kelly’s experience with Central America should have given him “a better appreciation of the factors pushing refugees to flee the region and factors driving migration in other parts of the world.”
“[B]ut there have been no indications of compassion, expertise, or cooperation coming from the DHS Secretary or his senior staff,” Gutiérrez said in an email. “DHS seems to wish Congress would just go away and stop asking them about what they are doing and why, which is not an option.”
Immigrant rights advocates argue that Kelly is wrong to claim his hands are tied by the law. He has the discretion to avoid deporting certain people and focus on others, as previous homeland security secretaries did, said Clarissa Martínez-de-Castro of the National Council of La Raza. Thus far, she doesn’t think he has used it.
“There was a sense that perhaps given his experience he would bring a more tempered approach to the issue of immigration and immigration enforcement,” Martínez-de-Castro said. “I think that based on what we’ve seen, now the question is whether he is a helpless executioner or a willing one of what are, at the very least, ethically questionable policies.”