Border Wars

Fenster writes:

The mainstream (i.e., anti-Trump) position on family separation is at least as disingenuous that of the Administration.  Much of the grandstanding in Congress relates to whether Trump can stop separation “with a phone call”.  Further, the mainstream press supports that view, arguing that the Flores consent agreement does not “require separation” and that Trump can stop the process on his own. That is true but misleading.

When someone is detained for federal criminal proceedings they are given over to US Marshalls.  It is never the case that children are permitted to accompany parents who are so accused. So the initial separation arises inevitably (in the case of illegal border crossings) from the decision to prosecute entry at the border rather than waving people through.

Most often the proceedings are quick and if the accused is found guilty of entering on an unauthorized basis they are sentenced to time served, generally days, are reunited quickly with family, and all are deported.  If all that can be done in under 20 days the Flores tripwire (no detention of children after 20 days) is not triggered.  But during that period of up to 20 days separation is unavoidable once the approach taken is the swift resolution of the legal matter.

But let’s say someone who is caught entering illegally not at a border crossing asks for asylum after being caught. Perhaps they ought to have presented themselves at the border (or to Mexican authorities, or to an American embassy–these are for the moment but trifling points).  But they are free to assert a claim for asylum even if they are brought in by traffickers not at a border crossing and subsequently apprehended. Such individuals may still have the charge of illegal entry to deal with but the asylum process beyond that can take a longer time.

Alas, under a 9th Circuit ruling dealing with Flores handed down a few years ago children cannot be detained for more than 20 days even if they are with their parents. So the government is prohibited from moving the asylum seeker to detention with their children awaiting an asylum hearing; even that situation is not permitted under Flores.

It is for this reason that the Administration favors a quick law change that would get rid of Flores restrictions on length of stay and permit families to be together. Who could oppose that?

Well, the Dems appear to be opposed, arguing that Trump doesn’t need the legislation.  Since Flores does not “require separation” the argument is that he can reunite families without a law change, with a phone call.

Sure but it appears that the only way to do that would be to just let the families go entirely. If it is objectionable to separate a child from a parent who crossed illegally, even for a matter of days, they can always be released, right?  Same with asylum seekers.

It sounds easy enough but I do not see any way the Administration’s approach to prosecution and asylum can be easily squared with keeping families together.

Now, there are of course different views on the wisdom of the Trump approach to the border. Migrants, their advocates and large chunks of the liberal electorate are fine with catch and release. They want the migrants in the country. If you like more immigration you will presumably like releasing families whether or not they have requested asylum.  Better to finesse the law than insist on its enforcement.

It is OK to have that opinion, but it is quite a different thing from saying Trump is free to end the separation policy with a phone call–not if he wishes to continue his current approach to entry and asylum.

That is the disingenuous part—what is not stated by the Dems is that in order for him to end separation without a change to Flores he would have to drop the current approach to the border, and revert to the prior practice of waving families through.

Why is this aspect not highlighted by Trump’s opponents?  The Dems know that the American public does not like family separation but they also know that the public does not favor the lax approach elites have taken to the border in the past, and just do not understand why someone who walks across the border should not simply be denied entry.

Is there a good case to be made by Dems for ignoring the law and letting people through given the complex nest of restrictions and laws in place at the time of entry? Something that will resonate with the public?  I doubt it.

Meanwhile Trump’s polling continues to improve.





About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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6 Responses to Border Wars

  1. plwinkler says:

    “Meanwhile Trump’s polling continues to improve.”

    Only among Republicans and his hardcore base.


    • Fenster says:

      48% approval nothing to scoff at, especially relative to past presidents. sure he is hanging on the the base but these are not normal times and trump is not your normal republican. if he were truly a right winger the way the term used to be defined he would have his angry base and the gut of the nation would be hard for him to reach. but he is trying to upend that view, and to paint the dems as the ones who have taken leave of their senses, in the process becoming the true fringe party. meanwhile korea, jobs, economy, immigration, even race. on all these points he is doing things that may well appeal beyond his base. take immigration, please. the economist/yougov poll shows that neither family separation (12%) or catch and release (19%) are popular. by contrast holding the family until the case can be processed is by far the most popular–a plurality of 44%. trump has been painted as pro-separation but he favored legislation that would permit the most popular option (flores changes) and when the dems said no he tried the executive order. so he is trying to steer this “crisis” to the sweet spot of public support. meanwhile the dems act as though unlimited migration is what the country demands. just not so.


  2. plwinkler says:

    “Meanwhile Trump’s polling continues to improve.”

    Well, it’s all good then, no matter what he does.


  3. Epaminondas says:

    I believe the original intent of this law was to discourage illegal entry, and it may actually have worked for a time. But then the establishment discovered they could simply ignore all immigration laws and no administration would dare actually separate families. This joyful information became widely known south of the border. They came north with “their” children. And then Trump came along…


  4. Bob says:

    I’m lukewarm on Trump- it’s certainly not hard to find things I don’t like about the guy. But I’ve gotten to the point that I’m tuning out the regular outrage cycles about him because so much of it seems to fall apart under even minimal scrutiny. The media in general hates him so much, they present his jokes as policy statements and find the worst possible angle for almost everything. I follow these things more closely than most and I rarely bother with them anymore. I’d guess most ‘normal’ people are completely done with automatically believing the latest outrage. Ironically, all the negative attention makes it easier for him to behave badly, but don’t tell lefties that!

    With that filter, my rough sense of this is that we have intentionally(?) stupid immigration laws that these families are trying to take advantage of. The media has decided that there’s a way to make Trump look like a Nazi, so they’re all in on their ‘deeply troubling reports’. And most of this can be fixed by sensible laws that keep families together in a clean and safe environment, but don’t simply release them into the US without any way to keep track of them. Who could possibly be against that? So I find Trump’s behavior and response to be pretty much in line with my view, and I would wager most people’s view, of a sensible approach. Regardless of your feelings about immigration- even if you want 10x what we have today- why shouldn’t it be done in a legal and orderly way?


    • Fenster says:

      <>. The huge amount of press on this also guarantees the controversy will be heard world wide, including in Central America.


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