Images of screaming children torn away from parents, photos of toddlers and even babies sitting alone in characterless detention centers, repellent bloviators defending the new policy as if splitting up families were itself the goal . . . the controversy over the Trump administration’s new “zero tolerance” policy on illegal immigration has turned into one of the great political debacles of our time.
The challenge isn’t new. Current law on detaining illegal immigrants has made border security nearly impossible. The problem arises most acutely when detained adults seeking asylum or some other legal status are accompanied by children. A 1997 Justice Department settlement, since reinforced by a 2016 appeals court decision, requires that the children of these detainees be kept in custody for no more than 20 days. That means immigration authorities must release parents and children together. They are supposed to return for their hearings but often do not, and so they remain inside the country as undocumented aliens. Hence when children are present, border enforcement officials are powerless to deter illegal crossings—bound to the policy of “catch and release.”
Into this difficult situation came Attorney General Jeff Sessions. He made it worse. Sessions saw the dilemma as an opportunity to impose an aggressive policy of deterrence. If the law won’t allow kids to be detained with their parents, he reasoned, so be it.
It was chief of staff John Kelly, not Sessions, who first floated the idea of separating parents from children as a way to stop illegal immigrants from exploiting the catch-and-release loophole. Kelly, then secretary of Homeland Security, mentioned it in an interview in March 2017, after which the idea seemed to hibernate. Then in April of this year, Sessions began forcefully asserting separation policy in the name of deterrence, and in April the New York Times reported that more than 700 children had been separated from their parents in the previous six months.
The Trump administration has long planned for an increase in detentions. On January 25, 2017, just five days into his presidency, Trump signed an executive order that called for boosting the number of detention centers as part of a broad immigration crackdown. But still there were not enough detention centers, requiring the Department of Homeland Security to transport parentless kids all over the country. Plans for reuniting these children with their parents were vague—when they existed at all.
The administration’s rollout of the policy—or whatever it can be called—was utter chaos. The White House’s fiercest immigration restrictionists, Sessions and policy adviser Stephen Miller, defended the new policy with great enthusiasm, arguing that children were being used by traffickers to escape U.S. authorities. But other administration figures—chief among them DHS secretary Kirstjen Nielsen—denied that DHS had any policy of separation. Trump himself, irritated that the “zero tolerance” policy had become a public-relations disaster, began last week blaming the Democrats. “I hate children being taken away,” he said to reporters. “The Democrats have to change their law—that’s their law.” The idea that it was all the Democrats’ fault, like so much that passes the president’s lips, was false.
But while it’s not true that the policy of separation was the Democrats’ law, there is evidence that the Obama administration also separated children from parents, and did so as a deterrent. As Weekly Standard contributor Jeryl Bier has pointed out, a January 2017 report submitted to Congress by an alliance of humanitarian groups noted that DHS border agents “routinely separate family members, including intentionally, as punishment—or ‘consequences.’ . . . These consequences are meant to deter future migration, often regardless of international protection or other humanitarian concerns.”
Hidden beneath all the confusion and acrimony is this reality: The question of what to do about migrants who cross illegally into the United States is a tangled one, admitting of no easy solution. President Trump on June 20 signed an executive order seeking to allow parents and children to be detained longer than 20 days, but that decision will be challenged by the same immigrant-advocate groups that sued the Obama administration for detaining parents and children together. After a fortnight of raging controversy, Congress is at last poised to do what it should have done years ago and change the law to allow immigration officials to keep families together for as long as it takes to arrive at a decision. But that, too, will be immediately challenged in court. The ACLU, which is already suing the administration over the zero-tolerance policy, has all but promised to sue if children are kept with parents in detention.
The immediate problem is political cowardice at the top. Trump allowed Sessions and Miller to drive the policy, then ducked responsibility when it went badly.
Congressional Democrats seem more interested in hurting Trump than in finding solutions. The administration’s policy is “an utter atrocity that debases America’s values and our legacy as a beacon of hope, opportunity, and freedom,” says Nancy Pelosi. Other Democratic legislators have said the same, eager to stir outrage about conditions that didn’t generate much protest under a president of their own party. And when Republicans proposed legislation that would address the problems, some Democratic leaders preemptively rejected them.
Illegal immigration along the southwest border presents major challenges to the American way of life—enormous practical difficulties as well as the social anxieties that cripple our politics—and very few in positions of leadership and influence seem interested in finding a way forward. Sen. Ted Cruz deserves credit for proposing legislation that would dramatically increase the number of immigration judges and so enhance the government’s ability to process claims quickly. We hope that happens. But sensible proposals like this one have often fallen victim to the idiotic belief that any one reform must be part of a grand compromise on immigration—a compromise that always seems to be just beyond our grasp. And President Trump seemed to reject the Cruz proposal less than 24 hours later, tweeting his skepticism and seeming to take a shot in passing at the entire immigration system: “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password.”
The problem of illegal immigration is a problem of political leadership. We have plenty of opportunists, plenty of virtue-signalers and demagogues and zealots, but no leaders. On this nettlesome problem, we’ll have to look ahead to 2020 and perhaps beyond.
