What, exactly, is President Obama going to do about the flood of unaccompanied children illegally crossing the southwestern border into the United States? So far, the White House has given many clues but few details, and when the president took to the Rose Garden to make a statement Monday, he spent nearly all his time talking not about the growing crisis but about his plan to make an end run around Congress on the broader issue of immigration reform.
There are moves the president could make that would greatly reduce the flood of children from Guatemala, Honduras and El Salvador into Texas. But passing a comprehensive immigration reform bill is not one of them.
In the Rose Garden, Obama blamed the current "humanitarian crisis" on the U.S. immigration system. The children crossing the border "are being apprehended," the president said, "but the problem is that our system is so broken, so unclear, that folks don't know what the rules are."
It would be more accurate to say the problem is that American law and Obama administration policy make it extremely difficult for the U.S. to send the unaccompanied children home to Central America. The parents and other family members who send the children know that and believe, correctly, that there is a very good chance the children will be able to stay in the United States permanently.
If the House passed the Gang of Eight bill today, and the president signed it into law, that problem would not be fixed.
In recent days, Obama and top Democrats have cited a law -- the William Wilberforce Trafficking Victims Protection Reauthorization Act, signed in 2008 -- that dictates the treatment of children who arrive in the United States illegally without an accompanying adult. If those children arrive from a contiguous country, that is, from Mexico or Canada, the Border Patrol and immigration officials are authorized to send them back to their home within 48 hours.
But if the children come from a non-contiguous country — Guatemala, Honduras, and El Salvador all qualify — the government must treat them entirely differently.
First, the Border Patrol must hand them over to the Department of Health and Human Services' Office of Refugee Resettlement. HHS must "engage the services of child welfare professionals to act as child advocates and make recommendations regarding custody, detention, release and removal, based upon the best interest of each child," according to a summary of the law prepared by its main sponsor, Democratic Sen. Dianne Feinstein. The department must also provide pro bono legal services to the children. It must ensure that any detained child is "placed in the least restrictive setting possible." It must conduct home studies to facilitate placement. And so on.
"The problem is that under current law, once those kids come across the border, there's a system in which we're supposed to process them, take care of them, until we can send them back," Obama told ABC a few days ago. "It's a lengthy process."
It certainly is. And it was never designed to handle a mass influx. Immigration authorities removed somewhere between 1,000 and 2,000 children in this way last year. The administration's own estimate is that 90,000 will come this year — more than 52,000 are already here. The number could grow even larger next year.
"Every child that is here today — I cannot imagine, at least under this administration, them being removed," says one GOP Hill aide who works on the issue.
What is needed is a change in the law to allow the government to treat children from Central America the same as children from Mexico. "We ought to have the same protocols that we have for Mexico and Canada for the Central American countries," said Texas Rep. Henry Cuellar last week. "Forty-eight hours — we should return them."
Note that Cuellar is a Democrat, which suggests a bipartisan measure could be crafted to address the crisis. In a letter to House and Senate leadership Monday, Obama indicated a willingness to "work with Congress" to provide the Department of Homeland Security "additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador."
That sounds hopeful, although the wording is vague and Obama's intention unclear. But it raises the hope that president might actually help Congress find a solution — if he can take time away from scheming to run around the very lawmakers he needs to fix the problem.