Forcibly separating children from their parents for lengthy, indefinite periods is bad.
A legal system that encourages illegal immigrants to drag their children through dangerous networks of human smuggling is also bad.
Current federal law leaves the nation choosing between these two bad options and inevitably finding the other side’s stance repugnant. Behind the raging policy debate about “children being torn from their parents’ arms” are differing philosophies of national sovereignty and differing attitudes toward lawbreaking and mercy. There is no quick fix, but clearly the Trump administration can handle things better.
[White House: Democrats are turning family separation into an ’emotional issue’ for midterm advantage]
Under President Trump’s new “zero tolerance” rules, immigrants caught entering the country illegally are charged, either with a misdemeanor or, in the case of repeat offenders, with a felony. Arrested immigrant adults are put in detention facilities. Children can’t be sent to jail, so the children of adults charged with illegal entry are separated from their parents, just as throughout the country children are separated from parents arrested and detained for other offenses, such as robbing a bank or making straw donations to a congressional candidate.
If the adults admit they were sneaking into the U.S. illegally and plead guilty, the family is reunited quickly, and they are all deported together. The process is more drawn out for illegal immigrants from countries other than Mexico, which are not contiguous to the U.S.
But many illegal immigrants, after being caught, claim asylum, often on poor grounds. Asylum seekers are supposed to present themselves openly at an official border crossing, but some still try to sneak in. Once someone has claimed asylum, federal law requires a lengthier process before they can be deported. The children of these adults are the ones separated from them for much longer stretches.
This is not a good way to treat people when it can be avoided. Previous administrations did avoid it, but only by shrugging at immigration enforcement and granting extra leeway to illegal immigrant families with children. These families were released from detention quickly because of laws and court rulings prohibiting lengthy detention of children.
This gentler treatment of families reflects either a good and charitable disposition, and a desire to keep children and parents together, or a cynical laxity in the administration’s constitutional duty to uphold the law, probably both. It also created a moral hazard and bad incentives.
“Some migrants have admitted they brought their children not only to remove them from danger in such places as Central America and Africa,” the New York Times has reported, “but because they believed it would cause the authorities to release them from custody sooner.
“Others have admitted to posing falsely with children who are not their own, and Border Patrol officials say that such instances of fraud are increasing.”
The options presented by these circumstances appear to be either the sometimes cruel separation of families or nonenforcement of the law, with all its perverse incentives.
We agree with Trump’s critics in some regards. It’s not true that the law requires the separation of families, because it’s not true that the law requires “zero tolerance.” Statements by White House officials, including former Homeland Security Secretary John Kelly, now the White House chief of staff, suggest that separation is seen not merely as an unfortunate consequence, but also as a useful tool to discourage illegal entry and force Democrats to come to the legislative negotiating table. This leads to some cruel cases.
But, as the saying goes, hard cases lead to bad law. And if ever there was a hard case, it’s the removal of a toddler from its mother. So it’s important to flush out the ideology behind the tricky arguments of Trump’s critics. They imply that there’s no humane way to bar illegal entry of families, so we need simply to allow it and thereby encourage a dangerous journey that could be viewed as child abuse all on its own.
The premise of immigration enforcement, that a people has the right to control who enters its country, is not one accepted in many elite circles. But Trump is right that if you don’t have a border you don’t have a country. And a combination of bad laws and heart-rending stories, which are often cynically engineered, should not render this country incapable of governing itself.
There has to be a way to embrace both the legitimacy of demanding an orderly, lawful immigration process and the compassionate point that children ought not be separated from parents any longer than is necessary.
The best fix would be to expedite asylum processing. Could Trump deploy hundreds of lawyers and practitioners to the border to make sure that those arrested for illegal entry and seeking asylum have their cases heard and adjudicated in a couple days?
Similarly, he should make avenues for legally seeking asylum more open. Add more legal border crossings, keep existing ones more open.
Beef up as quickly as possible the manpower required to process immigrants to shorten their separation. In the meantime, look for the lesser of the available evils. Let mothers with nursing babies and toddlers have their own facility. Make it easy for illegal entrants to reunite with their families by self-deporting.
On occasion, the best course of action will be a show of mercy, such as releasing illegal entrants with ankle bracelets and a caseworker. If this is an exceptional case and not the rule, it won’t act as a magnet for families or illegal immigrants or smugglers using rented or kidnapped children as cover.
In this debate, there are too many who set aside compassion or concern for the rule of law. To neglect either is a grave mistake, and good policy can be made only when enough people embrace our government’s duties to enforce immigration laws and to treat all people with as much compassion as possible.
[Related: Trump administration could be holding 30,000 border kids by August, officials say]
