In my last post I was tough on the Democrats. I’m sure there were some who pegged me as a sleeper – a closet Trump supporter with American flag pajamas. In this post I will lay that misconception (that I sleep in pajamas) to rest. Seven days ago, Trump was glad-handing his way through an historic summit with North Korean Dictator Kim Jung Un. As of today, the entire universe of news junkies, pundits and academics on Twitter is talking about one thing – children and immigration enforcement. What a difference a week makes. Here’s my short summary. Note I’m trying to avoid any loaded or inflammatory language (in the summary).
The past two administrations handled family issues at the border mostly (though not always) through deportation for illegal crossings. For asylum seekers, past admins chose a combination of detention and release on self-recognizance. The Trump administration has chosen criminal prosecution in virtually every case of an illegal crossing. They’ve also chosen detention in virtually every case of asylum. Laws and rulings in place dictate that children cannot be held “in detention facilities”. Instead they must be held by the Office of Refugee Resettlement (ORR) in the least restrictive setting. In other words, if parents are in federal detention facilities, children are separated from them because the children are not allowed to live in those facilities.
This legal situation is the pretext by which Trump claims to be hamstrung into following a bad law. However, even a cursory glance reveals that it is the “zero tolerance” policy he has chosen to pursue that is digging this hole. While ICE and ORR managed to create a procedure for separating children from parents, they do not have any predictable process for reuniting families. Since the children are held by two enormous bureaucracies, families may be separated for months or even more than a year.
It’s not a new policy per se. Both Bush and Obama used selective prosecution and separation as a deterrent. But the scale and enforcement rigor – the “zero tolerance” – is a new, intentional escalation apparently resulting in more cases and sudden visibility. While children are not being held “in detention”, they are often held in “centers”. It’s a protective custody arrangement that mirrors aspects of detention – fences, surveillance, rigid structural control etc. I’ve found this article from bipartisanpolicy.org to be a useful primer on where we have been and where we are now.
Democrats at the Buffet
Democrats feel like they won the lottery. You could not craft a scenario more tailor-made for them. It has everything: racism, harm to children, draconian policy, and an evil Mr.-Burns-like mastermind in Stephen Miller who clearly enjoys the spectacle. It positively glows with right wing evil intent. The description of “ripping” children from their parents is so good that Democrats are peeing themselves to give a take. There are even stories of callous, emotionless border guards toying with family’s lives. Stephen Spielberg couldn’t do better. It seems to validate everything they have been saying about Trump’s plan to turn the US toward fascism. Yes, Democrats are hyperbolic, invoking Hitler and every other trope of oppression, but who can blame them? The Trump administration makes it so easy! And the separation of families has real, devastating consequences for children.
If the issue has legs through November, it’s easy to see how it might further energize Democratic turnout in an already enthusiastic base. It may also persuade some undecided folks in the middle. The strategy would require nationalizing and “trumpizing” local elections, but the issue seems so powerful it is probably worth it. Democrats (as I’ve written) excel at nationalizing local elections.
Even right-leaners on immigration are (and should be) appalled that the law is being used in this way. The punishment seems far far worse than the crime – and asylum seeking is not even a crime. I know there’s an argument that asylum seeking is a pretext for illegal immigration. Yet genuine asylum seekers, who face horrific suffering and sacrifice to salvage their lives and families, are further victimized by this policy. Other than anti-immigration extremists, it’s hard to see how anyone wins on the implementation of this policy. But politically it’s a giant Democratic windfall.
But it’s the law?
Is there another side? If there is, it’s that immigration laws are a byzantine snake pit. I will try to give this other side, but it ain’t easy.
Immigration law is a mess. Consider this: the law and court cases require that if someone crosses the border illegally and the government chooses to prosecute them under the federal criminal statute, then yes, children “must by law” be separated from their parents. Note that zero tolerance criminal prosecution by DOJ is the big precipitating change here. The only way I can see of avoiding this result is to not prosecute the offender. The choice not to prosecute is the choice Bush and Obama appear to have made in the main. The same is true of asylum seekers. If they are held in federal detention while their claim is validated, then their children cannot be detained with them.
Previous administrations, seeing the potential blowback and not willing to damn the torpedoes, charted a nuanced course. They used prosecution and detention sparingly. Family separation remained under the radar of the general public where it could be claimed to be anomalous. Don’t be surprised if further digging shows the practice was more pervasive than we think. But more on that later. For now, my view is that immigration law and policy have been a hodgepodge of different attempts at the triangulation of various interests for both logistic and political reasons.
Meanwhile, Trump and his base want stronger border security: fewer successful crossings, reduced immigration overall and better tracking of immigrants who are here. Racism and protectionism is at the core of much of this sentiment, but even reasonable people in the center can see value in controlled immigration versus open borders. To the extent that previous policies resulted in chaos and furthered illegal immigration, the “but it’s the law” folks have a point.
So there are numerous problems with immigration law, policy and enforcement, but having the Trump administration trample over the whole system like a herd of elephant seals is hardly the answer.
The Principle of Least Interest
Trump believes in the principle of least interest – whoever cares the least has the most power. It’s the stupid wall that’s sticking in his craw. He promised the wall over and over again. People (including the president of Mexico) laughed at him and told him it was a pipe dream. But he’s just petty enough to detain a few thousand children in camps as hostages to extort funding for his meshuggeneh wall.
A smart congress who cared about these children and wanted to check this man would pass a single “clean” bill (no pet projects, no amendments, no wall) on family detention and separation, providing explicit relief for all families currently in process. They would do it with a veto proof majority. My feeling is that such a bill (if clean!) could garner wide support. In so doing they would remove this weaponized misuse of detention as a strategy, reassert their role as an equal center of power, and solve a very human crisis that is tearing at all of us.
How the Issue Might Morph
Could this play out differently? Could the narrative shift in Trump’s favor? One real possibility is media overreach. The large media organizations – Washington Post, NYT, CNN et al (excluding Fox) take much of the hyperbole at face value. It’s good for ratings and matches the world view of most of the producers and talent. Moreover, Trump certainly makes it easy. The media constructs a narrative that is as “Trump-as-Nazi” as possible. If any hard-to-ignore new information emerges that contradicts that idea, it will be child’s play for Trump to turn the narrative on its head.
For example, one study I saw indicated that the Obama administration prosecuted roughly 20% of all incoming illegal entries. That equates to around 450 thousand people during his administration. That’s a high number of prosecutions. How many children affected and separated? If the number turns out to be high – high enough to make it ugly – it’s pretty easy to see how some folks will roll their eyes at the media with a Reaganesque, “There you go again.” They will also justifiably wonder why Obama got a pass but Trump is on the hot seat.
It’s also possible we resolve the issue. Trump could back down. Congress could pass a new law. A court could enjoin the administration. Resolving the issue now, given the distance to November, might remove its sting. The cynic in me thinks it’s unlikely that folks will care too much about this issue in November if they see the problem as largely resolved within the next few weeks. Democrats will hammer away at it of course, but expect diminishing returns.
Meanwhile, some new Trumpian outrage will take the place of the current outrage. That’s the one prediction I will hang my hat on.