Democrats’ Border Separation Bill Would Let Nearly All Parents Who Commit Federal Crimes Get Off Scot-Free

Democrats’ Border Separation Bill Would Let Nearly All Parents Who Commit Federal Crimes Get Off Scot-Free

Every Senate Democrat has signed on to cosponsor a bill written so carelessly that it does not distinguish between foreign children at the border and U.S. citizen children.
Gabriel Malor
By

Democrats’ proposed legislation to prohibit so-called border separations would actually prevent federal law enforcement agencies almost anywhere inside the United States from arresting and detaining criminals who are parents having nothing to do with unlawfully crossing the border and seeking asylum.

Every Senate Democrat has now signed on to cosponsor a bill written so carelessly that it does not distinguish between migrant children at the border and U.S. citizen children already within the United States. The bill further does not distinguish between federal officers handling the border crisis and federal law enforcement pursuing the ordinary course of their duties.

Let’s break down Sen. Dianne Feinstein’s proposed “Keep Families Together Act” to see where Democrats went wrong. The bill provides that “[a]n agent or officer of a designated agency shall be prohibited from removing a child from his or her parent or legal guardian at or near the port of entry or within 100 miles of the border of the United States” (with three exceptions to be discussed later). Four immediate warning signs in this provision should put the reader on notice that this bill is not what Democrats claim.

First, “designated agency” here is defined as the entirety of the federal departments of Homeland Security, Justice, and Health and Human Services. The scope of the bill is not limited to those portions of these departments involved with the border crisis, and there is no other limiting factor in the bill that would cabin the prohibition on family separation to immigration-related matters. In other words, this bill is going to regulate conduct across a great many federal offices that have nothing to do with separating children from families arriving unlawfully in the United States.

Second, “agent or officer” is not defined by the legislation, except to say that it includes contractors. Federal law, however, already defines “officer” to include (with exceptions not relevant here) every federal employee appointed to the civil service by the head of an executive agency and ultimately overseen by the head of an executive agency.

Here again, this bill is not limited to controlling the behavior of the DHS, DOJ, or HHS officers involved in the border crisis. The proposed law would apply with equal force to, say, FBI agents (part of DOJ), Secret Service agents (part of DHS), and Centers for Disease Control officers (part of HHS) in the exercise of their everyday duties.

Third, “at or near the port of entry or within 100 miles of the border” does not meaningfully limit the geographic scope of this bill. That area includes almost the entirety of the geographical territory of the United States and the vast majority of people living in it. Two hundred million people live within 100 miles of the border. That’s roughly two-thirds of the U.S. population. Even more live near ports of entry, including in places far from the border crisis, like Salt Lake City, Utah (nearly 700 miles from the nearest border crossing), Tulsa, Oklahoma (more than 600 miles from the nearest border crossing), and Nashville, Tennessee (nearly 600 miles from the nearest border crossing). All major U.S. metropolitan areas fall within either 100 miles of the border or are near a port of entry or both.

Finally, “child” is defined in this legislation as any individual who has not reached 18 years old who has no permanent immigration status. This astonishing definition includes U.S. citizens under the age of 18. Citizen children by definition have no immigration status, permanent or otherwise. (Even if the Democrats belatedly amended this provision to restrict the definition to alien children without a permanent immigration status, that amended definition would still include non-migrant aliens, like tourist children, Deferred Action for Child Arrivals recipients under the age of 18, and children whose parents have had their immigration status revoked.)

Thus, far from addressing the border crisis, the Democrats’ Keep Families Together Act applies almost everywhere in the country to prohibit any DHS, DOJ, or HHS officer from removing almost any child from a parent. The listed exceptions to the prohibition—a state court authorizes separation, a state child welfare agency determines that the child is in danger, or certain DHS officials establish that the child is a victim of trafficking or is in danger from the parent, or that the parent is not the actual parent of the child—are completely unrelated to the vast majority of DHS, DOJ, and HHS enforcement activity.

Two groups would not benefit from the prohibition on family separation in this bill. First, parents who have children with a permanent immigration status go unprotected. Additionally, the childless would obviously find no shelter from this legislation. This disparity in treatment for the childless and lawful permanent residents borders on the farcical.

The ridiculous consequences of passing the Democrats’ hastily written mess are easily demonstrated. Let’s say FBI agents hear about a drug trafficker and murderer in Buffalo, New York. The agents get a warrant to raid the drug trafficker’s house and arrest him. While they do so, they discover the drug trafficker’s minor daughter is home with him. Feinstein’s bill would prohibit the FBI agents, while arresting a drug trafficker, from separating this child from her father.

This is not a farfetched hypothetical. FBI agents are agents of DOJ (a designated agency) and Buffalo is within 100 miles of the border. So long as the daughter is either a U.S. citizen or an alien without permanent status, the FBI agents would be unable to proceed with normal law enforcement activities. The agents would be forced to choose between booking the drug trafficking murderer into jail with his daughter or not booking him into jail at all.

Panicky lawmaking often produces absurd results, and this one presents law enforcement with the choice between keeping children with their criminal parents while prosecuting them almost anywhere in the United States and for any crime whatsoever, or not prosecuting criminal parents at all. The legislation is not limited to unlawful entry prosecutions, to migrants, or (absent amendment) even to alien children.

A more honest method of ending unlawful entry prosecutions—and the family separations that ensue—would be to repeal 8 U.S.C. § 1325, which criminalizes unlawful entry in the first place. That would at least have the benefit of not curtailing federal enforcement of every other criminal law on the books for parents who keep their children close.

At a minimum, Democrats’ proposed legislation is the consequence of extremely careless and hurried drafting. If this is actually what Democrats intend to do—and every Democratic senator has now signed on—it is a monstrous attack on law and order. If enacted, this bill would turn federal law enforcement upside down in the name of protecting relatively few unlawful border crossers from being prosecuted. This sloppiness is a prime example of why Democrats are unserious about outcomes and unfit to govern when the emotional stakes get high.

Gabriel Malor is an attorney and writer in Washington, D.C. Follow him on Twitter.

Copyright © 2018 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.