Separating Children at the Border

Our nation is failing badly at our public discourse. This week has seen one of the outrage storms that are increasingly common, this time over the Trump administration's decision -- this is how it is painted -- to separate the children of immigrants from their families at the border. I have seen this compared to the Nazis taking Jewish children as a prelude to murdering them. A number of children have been 'lost' by the system; I have seen this compared to the 'lost girls' seized by Boko Haram.

This is all madness. What's really at stake is that a Federal judge on the 9th Circuit has been pressing successive administrations to obey a 1997 settlement agreement. The agreement wasn't really meant for the circumstances that have arisen since then, which has led to negative consequences when it is applied anyway. Multiple administrations have dealt with these consequences, and really the problem is that Congress needs to revisit the law. But Congress can't do that because it is too divided on what the law should be.

As a result, the real debate we are having -- apparently entirely without realizing it -- is whether justice morally requires us not to enforce Federal criminal immigration laws, in every case in which they might be enforced on migrants traveling with children they claim to be their own. There are very negative consequences to accepting that criterion as requiring the waiving of criminal sanctions, especially in that it empowers human traffickers but also in that it encourages migrants to bring children along on a very perilous journey. We really should be discussing that, and trying to decide what the right solution looks like. Instead, we're talking about Nazis and Boko Haram.

What's going on here is that there was a 1997 settlement to a 1985 dispute called the Flores Settlement Agreement. This is not a law, but it is treated by the courts as if it were a sort of contract between the government and any migrants it might arrest. The 9th Circuit Court has applied it in this way for decades. Of particular interest here, the Flores agreement requires that children who are not suspected of a crime not be detained by the government. If it happens to detain some by accident, it has to release them within 20 days. The 9th Circuit polices the government aggressively on this point.

This is why the Nazi/Boko comparisons are so silly. These children aren't being separated from their parents in order to do them some harm, but because they are receiving due process of law, aggressively policed by a court interested in protecting their rights. They're being set free, not stolen. And the reason the system is losing so many is that they're being turned over to family by preference, without checking their immigration status. When you turn over someone in the country illegally to someone already part of the migrant underground, you shouldn't be surprised when a high percentage of that group don't answer your mail or help you arrange visitation. But unlike Boko Haram, the government isn't trying to steal these kids from their families. It's trying its best to return them to their families, while prosecuting parents who have broken the law.

This prosecution is not being done maliciously either. Bringing your kids into the country illegally is a felony, "people smuggling" -- ten years per child in the Federal pen. These folks are only being charged with the misdemeanor offense of bringing themselves. The government doesn't even want to keep the parents in jail for very long. It is merely that the government knows these people are in the country illegally, and wants to hold them until it can have their asylum and deportation hearing. The Trump administration's original idea, shot down by the 9th Circuit last July, was to hold the kids with the parents. The 9th Circuit said they had to either not hold the parents ("catch and release," as this approach is sometimes called), or separate them from their children and release the children.

This process does not work perfectly. This is the same Federal government that lets Veterans, perhaps the most respected American demographic, die on waiting lists. The Federal bureaucracy can't do anything both well and quickly. Since the 9th Circuit insists it be done quickly, unsurprisingly the rapid release of the children isn't done well. That was true for the Obama administration (which is the one the report everyone is raising Cain about reports having lost all the kids), and it will be true of the Trump administration as long as we keep using this silly system. Human traffickers, an aggressive bunch, have been successful at applying for sponsorship of these children -- and getting it, because the Federal bureaucracy has 20 days from finding the kid in the desert to having to hand them over to somebody.

So, OK. Let's no do that anymore. I agree. Let's find a different system. What should it look like?

Well, let's start with the dilemma that the Flores Settlement Agreement provokes. Either you must let any migrants go if they are traveling with children they claim are their own, or you must separate them from children who probably really are theirs. Taking the second horn of the dilemma provokes the Nazi talk. But taking the first horn provides perfect cover for human traffickers traveling with child slaves who really have been stolen from their families.

The Trump administration can't do anything except choose between these horns. The 9th Circuit could do something else, but their enforcement of the Flores agreement is consistent -- I don't doubt they think they are just doing stare decisis and correctly applying existing case law. The one group of people who could fix this is Congress.

Congress could provide authority to overturn the Flores Settlement Agreement and replace it with new positive law governing the treatment of these cases. They could allow the government to hold families intercepted crossing the border together, never separating them until their asylum claims can be adjudicated and their deportation or admission arranged accordingly. During the investigation of such claims, they could sort out if it was in fact parents with children they had found crossing the border, or smugglers with slaves. In the former case, sentences can be suspended and the family can be returned to their country together. In the latter, the felony charge should be brought, and the slavers placed in prison. Then the children can be returned to their real families, who are probably desperate with terror.

In that way, you do not incentivize bringing children into danger, and you catch a very bad class of people who really are stealing children to do bad things to them. The 9th Circuit Court should respect that, given that it would be done by an act of law rather than unilaterally by an administration (whether Obama's or Trump's).

So if you're going to call your congressman to talk about this, that's what I suggest you say. But do what you want. Just please stop screaming about Nazis.