DNC approves dueling ICE measures; the 2002 law cited as precedent moved INS enforcement into Homeland Security

The statute Democrats invoked on Saturday as the precedent for abolishing U.S. Immigration and Customs Enforcement is still on the books, and it does not read as the end of an agency. It reads as a transfer, with a date attached.

At its summer meeting in Austin on Saturday, Aug. 15, the Democratic National Committee approved two competing positions on ICE, the Associated Press reported: one calling for "concrete reforms" of the agency, and one calling for its abolition. AP described the result as dueling messages that reflected sharp opposition to President Donald Trump's crackdown while revealing disagreement in the party ahead of the midterms. The vote is not binding, according to AP, and does not set the party platform, which will be determined at the 2028 convention; candidates and lawmakers will continue to determine their own positions.

The abolition measure came from Michele Johnson, a DNC member from Louisiana. AP reported that Johnson, who proposed the measure, said it was time for Democrats to take a stand, and that she pointed to the dissolution of ICE's predecessor agency, the Immigration and Naturalization Service, as a precedent. Her argument at the meeting was as much about posture as about immigration enforcement. "I think one of the reasons why people are not trusting the party is because we sound so academic," she said, in remarks AP reported from Austin.

That precedent is checkable, because it was written into law. The dissolution of INS was carried out by the Homeland Security Act of 2002, and the operative provisions are codified at 6 U.S.C. sections 251, 252 and 291.

Section 291(a) sets a condition before it sets an ending. The provision states that "Upon completion of all transfers from the Immigration and Naturalization Service as provided for by this chapter, the Immigration and Naturalization Service of the Department of Justice is abolished." In the statute's own sequence, the abolition is the final step of a transfer rather than an alternative to one.

What moved is itemized. Section 251's list of functions transferred to the Under Secretary for Border and Transportation Security names the Border Patrol program, the detention and removal program, the intelligence program, the investigations program and the inspections program. The Congressional Research Service, in its report RS21410 on the reorganization, records that section 441 of the Act "transfers the enforcement functions, personnel, assets, and liabilities possessed by the Commissioner of INS to the Under Secretary for Border and Transportation Security." Staff and liabilities travelled with the programs.

They travelled into a bureau the same Act created. Section 252 directs that there "shall be in the Department of Homeland Security a bureau to be known as the 'Bureau of Border Security'." CRS puts the calendar on it: under President Bush's Reorganization Plan the transfer of INS functions was to take place on March 1, 2003, the same date the Bureau of Citizenship and Immigration Services became legally effective and the same date the enforcement functions of INS were transferred to the Bureau of Border Security. CRS states the abolition the same way the code does - INS would be abolished upon completion of all transfers to the new department.

A second provision in section 291 goes to structure, and its scope matters as much as its text. Subsection (b) speaks to the reorganization authority provided by section 542 of the chapter, saying that authority may be used to reorganize functions or organizational units inside either bureau but "may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other." CRS summarizes the same subsection as one that "explicitly prohibits the recombination of the two bureaus into a single agency or the consolidation of functions." The bar runs against the delegated administrative authority to reorganize. It is not a restraint on Congress, which wrote it and can write over it.

Set the two DNC positions against those sections, and this is analysis, drawn from the provisions cited above: they converge on a single question the 2002 Act answered rather than avoided - who holds the detention and removal program. The INS record shows that abolition by statute redistributed enforcement work instead of halting it, and that every program section 251 lists outlived the agency that had run it. A measure that abolishes ICE without naming where detention and removal goes is, in statutory terms, an instruction to reorganize, which is not far from what the companion measure on reforms asks for. The AP account this piece relies on does not describe that overlap.

Not every member was persuaded on Saturday. AP reported that Yvonne Reeves-Chong voted against the abolition measure, saying it would draw support only from part of the party's base while drawing "fire" from another group of voters. "I would strongly suggest we get to the business of winning races so we can make the policies that make a difference," she said.

DNC Chairman Ken Martin, who is from Minnesota, where AP reported that Renee Good and Alex Pretti were fatally shot amid the immigration crackdown earlier this year, said in an interview that what unites Democrats, whatever their position on reform or abolition, is a belief that what ICE, Customs and Border Protection and the federal government are doing now should stop. "There has to be a better way," he said.

AP situates the vote in a longer argument: ICE has been at the heart of a progressive rallying cry since 2018, during the first Trump administration, and the call was renewed among some in the party after two recent fatal shootings by the agency in July. AP also cited a poll by the AP-NORC Center for Public Affairs Research released this month finding immigration remained a stronger issue for Trump than the economy or Iran, released after a July stretch in which, inside a single week, three people died during ICE encounters. In that survey, 39% of U.S. adults approved of his performance on immigration, down from 49% at the beginning of his second term.

Two things are checkable from here. The first is the platform. AP reports Saturday's vote does not set it and that it will be determined at the 2028 convention, which makes the convention, not the Austin meeting, the date on which the party has to write a single position on ICE down. This desk's expectation, falsifiable on the record: the DNC will not adopt a binding party position on ICE's abolition before that convention convenes.

The second is text. If a bill to abolish ICE is introduced, the question section 251 answered in 2002 - where the detention and removal program goes, and who signs for the personnel, assets and liabilities that go with it - is the one to read the bill for first. The 2002 Act named a destination on the page. Any successor statute either does the same or leaves the reader to guess.