The Trump administration’s “zero-tolerance” policy toward illegal immigration has spawned some heart-rending, stomach-turning reporting in recent weeks, mostly centered around the the separation of children from their parents at the border — nearly 2,000 from April 19 to May 31. The stories of heartbreak and isolation that have ensued as a result of this policy, which may even include that of an infant literally torn from its mother’s breast, are bound to spark a realization in the mind of even the most committed immigration hawk: Something has to change.
Media observers have with near uniformity cast opprobrium on the Trump White House for its alleged brutality and heartlessness. And the administration deserves it. The results of zero-tolerance policies, whether applied in the classroom, in the courtroom, or at the border, are in equal parts absurd and cruel. But whatever the sum total of the Trump’s excesses turns out to be, they are ultimately outgrowths of a far older trend. At the root of the present border nightmare is the abandonment of responsibility for immigration policy by the legislative branch, which has allowed successive presidencies to swing between the worst of extremes.
As Rich Lowry laid out when this issue first surfaced last month, separating parents and children has long been part of the playbook for prosecuting illegal immigration. Adults who are to be prosecuted enter the custody of the U.S. Marshals Service. Any children accompanying them are taken to temporary shelters operated by the Department of Health and Human Services. Legal proceedings are usually short, ending in the parent being turned over to ICE, at which point the family will be reunited and deported in short order.
In this ideal scenario, separation is brief and ends with reunification and a return to the family’s home country. Of course, as anyone who has interacted with the TSA knows, the ideal scenario is not the typical one when it comes to interacting with government agents, and opportunities for bureaucratic incompetence and abuse to wreak havoc on human lives abound.
Asylum claims can make things far more difficult: because the time it takes to adjudicate them is longer than the time the government is allowed to hold minors who are part of family units (20 days, according to the Supreme Court’s 1997 Flores Consent Settlement). Adults caught in asylum proceedings can easily lose track of their children. Even if the government is able to navigate each step successfully, the anguish and fear created by separating children from parents are moral evils that ought to be avoided whenever possible.
All of the components of this approach — the procedures for processing adult offenders, the delegation of caring for children to HHS, and the shelters and detention centers currently in use — existed prior to Trump’s taking office. In fact, as former Obama speechwriter Jon Favreau and others learned in embarrassing fashion earlier this month, many of the images and stories that have been to illustrate the state of immigration policy under Trump in fact originated during the Obama years, when the government had to deal with a huge spike in unaccompanied minors crossing the border. The shocking images from the administration’s scramble for a solution were not widely reported at that time, presumably because they could not yet serve their destined purpose as damning indictments of Trump’s America, but they were just as real.
The only new element Trump has introduced is his hardline mentality. Previous administrations opted not to prosecute first-time offenders for illegal immigration. They turned them over to ICE for deportation instead. Both George W. Bush and Barack Obama objected to separating families on moral grounds. This meant that while separating families was always an option, it was rarely used.
Trump has disrupted this precedent, opting to prosecute all offenders immediately upon apprehension, the goal being to deter people from entering with families in the first place. It is this change that has drastically dialed up the frequency of separations in recent months, despite no official changes in our immigration law or enforcement apparatus.
Trump, and Trump alone, is responsible for how his administration exercises its power, and those who emphasize that, contrary to his deflections, there is no law compelling him to continue this policy, are correct. However, they also miss the larger issue at hand. The fact that there is no law telling the executive branch who to prosecute for illegal immigration and how to treat their families is indicative of congressional abdication, not blamelessness.
While an inadequate legal status quo does not provide moral license for Trump’s severity, it did make it inevitable that something like this would come to pass: leaving undue power in the hands of the executive branch is essentially gambling on the disposition of each administration, and it is only a matter of time before a leader comes along who is willing to exploit that situation and abuse it.
This is why the Founders invested Congress with the responsibility to dictate how, when and where executive power is to be used. In short: There is already a serious problem when the only thing preventing the president from abusing his power is an informal tradition of noblesse oblige. For years now, Congress has proven unwilling to address this and other glaring holes in our immigration law.
House Minority Leader Nancy Pelosi added yet another episode to this discreditable history last week, denouncing a bill Republicans crafted in response to those very holes — it would end the policy of family separation as well as providing legal status to some DACA recipients, while providing funding for border-security measures including Trump’s cherished wall — as “totally unworthy of America,” and vowing to oppose it.
The bill is not perfect when viewed from any side of the immigration question, but no law is, and the current bill is nonetheless a step toward a better policy. A responsible lawmaker in Pelosi’s position would at least attempt to influence the legislation rather than dismissing it out of hand. The cynicism and fecklessness on display here are obvious and grotesque: Pelosi would rather Trump continue separating families — thus retaining condemnations of his cruelty as political clubs with which to bash Republicans — than accept an imperfect solution.
Fortunately, this is not Pelosi’s call to make, as Democrats remains outnumbered in the House. Should the bill pass the House, however, many of her Democratic colleagues in the Senate will follow her in her mad dash toward the moral high ground, casting their intransigence as a brave stand against Trump. In other words, they will do exactly what they spent all eight years of Barack Obama’s presidency accusing Republicans of doing, all the while refusing to rein in a man they routinely denounce as the most dangerous leader in American history. The onus would be on Republicans in the Senate to convince a handful of moderates to break from the line and vote for the compromise bill.
The ramifications of this question go beyond the issue of immigration. Donald Trump may not become the tyrant of #Resistance fever dreams, but he does combine a thirst for recognition and a strong vindictive streak with a malleable worldview and a limited understanding of the Constitution, all of which make him a one-man argument for arresting the growth of executive power. This was one reason why many conservatives regarded his candidacy as dangerous, as it threatened their long-standing opposition to expanding presidential power.
The human tragedy currently unfolding at the border has created a moral imperative for them act on that conviction. Only Congress can find a permanent solution to the legal contradictions that have allowed for the separation of families at the border. In doing so, they would not only relieve a great deal of suffering, but also reassert their role in dictating federal policy, thus achieving a victory that would transcend the issue at hand and help reverse a deeply insidious current in our politics.