So it was a ruse. The hysteria over the separation of illegal-alien asylum-seekers from their children (or their purported children) was in large part pretextual. The real target of rage was the Trump administration’s policy of prosecuting all illegal border-crossers for the federal misdemeanor of illegal entry.
In April, U.S. Attorney General Jeff Sessions announced a “zero-tolerance” policy for illegal entry. Henceforth, virtually all aliens caught entering the country illegally would be held for prosecution, rather than being released on their own recognizance for a later noncriminal deportation proceeding, to which few ever showed up. (This new enforcement policy would have come as a surprise to anyone who had fallen for the advocates’ decades-long lie that illegal entry is not a crime.) Under the new policy, even if the adult had brought a child with him across the border—the usual accoutrement of an asylum-seeker, for reasons explained below—the adult would still be prosecuted. The adult would be held in a U.S. marshal’s facility pending trial, while the child would be placed in a dormitory run by the U.S. Health and Human Services department, since children cannot be held in criminal lockups.
Images of child border-crossers, separated from their adult companion and crying or looking upset—and the experience would undoubtedly be traumatic for most young children—triggered nonstop coverage of Trump administration cruelty. MSNBC and CNN set up border encampments from which reporters and pundits pontificated on the child-separation crisis. Nazi and Holocaust analogies flew around the Internet; faculty petitions invoked the internment of Japanese-Americans during World War II. Mexico and four other Latin American countries filed a human rights complaint against the U.S. Politicians and religious leaders lined up to denounce White House racism and anti-immigrant hatred.
On Wednesday, Trump called their bluff. He signed an executive order that would house illegal-alien adults with minors in Department of Homeland Security or other government facilities. The zero-tolerance policy, however, would continue. Democratic politicians and illegal alien advocates immediately cried foul. “Make no mistake: the President is doubling down on his ‘zero tolerance’ policy,” Democratic U.S. Senator Dick Durbin, said in a statement Wednesday. “His new Executive Order criminalizes asylum-seekers . . . . Locking up whole families is no solution at all—the Trump Administration must reverse its policy of prosecuting vulnerable people fleeing three of the most dangerous countries on earth.”
The Harvard Kennedy School’s Juliette Kayyem told CNN’s Don Lemon on Wednesday night: “The real problem is Sessions’ decision to prosecute [illegal border crossers] 100 percent.” A CNN anchor on Thursday morning asked U.S. Representative Adam Schiff, a California Democrat, if his position was: don’t criminally charge each person who illegally crosses the border. Schiff responded: “We don’t have to criminalize everyone that’s coming here seeking asylum.” NPR interviewed the director of Migrant Rights and Justice at the Women’s Refugee Commission, Michelle Brané. “Families will be just as traumatized, children will be just as traumatized” under the executive order, she said on Thursday morning. “Exchanging one form of trauma for another is not the solution”; getting rid of the prosecutorial mandate is.
And the open-borders lobby possesses a powerful weapon for doing just that. The extraordinarily complex thicket of interpolated rules and rights that govern U.S. immigration policy (the result of decades of nonstop litigation by the immigration bar) contains a series of judicial mandates that defeated even the Obama administration’s tepid efforts to bring some semblance of lawfulness to the border. A long-running class-action lawsuit in the U.S. Ninth Circuit Court of Appeals, originally styled Flores v. Reno, has held that alien minors cannot be confined by the government for longer than 20 days. This 20-day cap contributed to the flood of Central American child-toting asylum seekers that picked up steam during President Obama’s second term. Asylum petitions typically take months, if not years, to adjudicate, given the long backlog of such cases in the immigration courts. If an adult crosses the border alone and utters the magic asylum words—a fear of persecution in his home country—he could in theory be held in detention until his asylum claim was adjudicated. If, however, he brings a child with him and makes an asylum pitch, he puts the government to a choice: detain the adult separately until his claim is heard and release the child after 20 days, or release both adult and child together.
The Obama administration usually chose the second option. Word coursed through Mexico and Central America that taking a child across the border was a get-out-of-jail-free card that would exempt its holder from both criminal prosecution and detention. This child-release lever, coupled with Obama’s announcement in 2012 that he would grant amnesty to the so-called Dreamers, meant that Obama soon had his own family border crisis on his hands. In 2014, 70,000 adult-child units and 70,000 unaccompanied minors were apprehended illegally crossing into the U.S. The administration tried building large family detention centers to hold the children and their accompanying adults, but the same Flores decree that has bedeviled the Trump White House stymied that effort. In 2015, a federal trial judge, Holly Gee, herself appointed by Obama and the very definition of an activist jurist, vastly expanded the scope of the original decree and ordered the administration to release the detained minors. The Department of Homeland Security warned that ending family detention would trigger another border surge. Judge Gee dismissed this concern as “fear-mongering,” according to the Associated Press.
It is to Judge Gee that the Trump administration will now make its appeal to lift the 20-day confinement cap. The chance that she will agree to do so is zero. Unless that ruling is overturned on appeal or Congress changes the relevant law, the administration will have two choices: try to get asylum hearings down to 20 days, or abandon its universal prosecution policy and resume catch-and-release at the border for adults with children. Streamlining the asylum process would require both narrowing the standard for granting asylum, pursuant to its original intent (something that Sessions has already begun to do), and increasing judicial resources. (Bizarrely, Trump has denounced such an increase in judicial manpower.) Even then, meeting a 20-day limit on asylum detentions will be a stretch. Resuming catch-and-release, of course, would violate one of Trump’s key electoral promises. Fifty years of litigation and lobbying are now reaping rewards unforeseen even by the open-borders establishment. Trump has ducked one showdown, but an even bigger one lies ahead.
Underlying this episode were several cardinal principles of left-wing activism: that favored victim groups must never be held responsible for their actions, and that policy should be made based on immediate claims of need, with no regard to long-term consequences. The reigning assumption during the family-separation meltdown was that the adults who brought children with them across the border had no responsibility for their subsequent plight. The only actor with agency was the federal government; it alone bore the blame for alien minors being placed in detention facilities. Yet the but-for cause of the child separation was the adult’s decision to cross illegally into the U.S., child in tow. If you don’t want to be separated from your or another person’s child, don’t cross the border illegally. Likewise, any whisper of immigration enforcement inside the border is inevitably greeted with cries that such enforcement would cause illegal aliens to be “fearful.” If you don’t want to fear deportation, don’t assume the risk of deportation, however slight that risk may be, by illegal entry.
Obeying the law, however, is something that must never be demanded of politically correct victims. If lawbreaking carries negative consequences, the fault lies with the legal system, not with an individual’s decision to break the law in the first place.
This principle is at work in the ongoing attacks on the criminal-justice system as well: the overrepresentation of blacks in prison is attributed to allegedly racist actors and institutions, not to lawbreaking by the criminals. Non-legal forms of distress are also covered by the no-agency rule. If single mothers experience elevated rates of poverty, the fault lies with a heartless welfare system, not with their decision to conceive a child out-of-wedlock. The father, of course, is as good as nonexistent, in the eyes of the single-mother welfare lobby. If teen mothers are stressed out, the problem lies in the absence of daycare centers in high schools.
The “progressive” solution to these dilemmas is to confer an immediate benefit on the alleged victim that will alleviate the problem in the short term, perverse incentives be damned. Illegal aliens with children must be exempt from immigration rules. The likelihood that such a policy will encourage more illegal aliens to come is out of sight, out of mind (if not covertly viewed as an affirmative good). If having more out-of-wedlock children puts a strain on a single mother’s welfare check and food stamps, then the government should increase the allotment to reflect the additional births. If that single mother and her children show up at a shelter claiming homelessness, give them an apartment. If such free housing encourages more single mothers to flood the shelter system, contract for more apartments.
Strangely, after Trump issued his recent executive order, a few media voices tentatively raised the problem of the unintended consequences of purportedly humane rules. CNN anchor John Berman asked Schiff on Thursday morning if exempting illegal aliens with children from detention “incentivized” such illegal crossings. Schiff ducked the query: “Well, it’s not a simple question as whether somebody has a child or not.” But the problem of perverse incentives will not go away. America’s loss of sovereignty over its borders and the incursion of millions of barely literate campesinos and their progeny is the result of years of victim-favoring policies that ignore personal agency and court the consequences.