Posted by Ryan Suto on June 22, 2018 in Blog

By this point, most Americans have seen the horrible images of migrant children crying alone near our Southern border, or have read traumatic accounts of infants being held in government custody for up to a month at a time or being torn from their mothers while breastfeeding.

This politically manufactured moral crisis has shaken the very core of what many Americans tell ourselves about our compassion and our role in the world. As such, there has been an incredible amount of misinformation and morally charged language over the past week, which needs contextualization.

The Trump Administration’s “zero tolerance policy” toward illegal immigration was first implemented on April 19, meaning the federal government would criminally prosecute as many people as possible found entering the United States without prior authorization. The president is largely within legal authority to do this, but individuals do have the right to cross the border in order to seek asylum, a right undermined by Trump’s existing policy-- a violation of international law.

Trump’s choice to prosecute and detain migrants en masse means that parents crossing the border with their children are detained, as well. Since children cannot be held among noncustodial adults, Trump’s policy requires that children of any age are separated from their parents. As a direct result of this indiscriminate policy choice, a DHS spokesperson admitted the Department has separated nearly 2,000 minors from their families in just over a month. Media reports suggest these children are held in cages with little protection from high desert summer temperatures. DHS has also created “Tender Age” shelters for children under the age of 12, and has planned to place up to 20,000 children in detention on military bases.

Executive officers, such as the president, have the discretion to not enforce, or selectively enforce, any law. As examples, the Obama Administration chose to not enforce federal marijuana law, and Trump refuses to defend the Affordable Care Act in court. This discretion allows police officers to give warnings in traffic stops, prosecutors to drop charges, or the entry of plea deals.

Some who continue to support Trump’s immigration policy, including the majority of Republicans, point to the illegal entry of these migrants as a justification for their inhumane treatment. Indeed, under 8 U.S. Code §1325 crossing the border illegally has long been a misdemeanor punishable with up to six months in jail. This is of similar legal significance to fishing on a wildlife refuge, fraudulently using the 4-H Club emblem, and mailing lottery tickets. It is estimated that 13.2 million misdemeanor cases are filed in the United States annually, but illegal immigration seems to garner outsized attention in political discourse.

Misdemeanors are not, of course, as serious as felonies, such as lying on your security clearance application, which are punishable by jail time exceeding a year. Likely around 70% of Americans have committed a misdemeanor or felony at some point, though many do not get caught or use social connections to avoid arrest or imprisonment. The implication that committing a minor crime—a misdemeanor—is justification for separating families and risking permanent separation would never be applied to other misdemeanors. This punishment does not fit the crime.

The Obama Administration did detain and separate some families, and deported more people than any of his predecessors, for which he was rightly criticized. The major difference between the two policies, is that under Obama, the government exercised discretion when dealing with families, often detaining them together, and took the interests of the child into consideration. Trump’s zero tolerance policy allows for no humane considerations. Where Obama’s policy was cruel, Trump’s has been inhumane.

Due to a lethal combination of incompetence and indifference to human suffering, the Trump administration has no concrete plan for reuniting the thousands of children in U.S. custody with their families; many will likely never be reunited. Earlier this year, the administration ended a Family Case Management Program which assisted immigrant families once in the United States. And without the efforts of nonprofits and advocacy groups on the ground collecting as much data as possible on detainees, there may be insufficient information to properly identify separated family units.

DHS Secretary Kirstjen Nielsen, Attorney General Jeff Session, and the president have all lied about this policy at some point over the past few weeks, variously blaming the policy on immigrants, Democrats, Obama, and federal law. The images, stories, and lies provoked fierce criticism and prompted the president to issue an unnecessary executive order halting his own policy. But the executive order itself is dangerous: it purports to maintain family units within indefinite detention “where appropriate and consistent with law and available resources.”

The executive order will not decrease the number of migrants detained, does not address the conditions in which they are detained, and provides no additional resources for caring for babies, school-aged children, or the massive influx of detained people. It further makes no mention of asylum or those claiming refugee status, and thus does not displace the current policy of detaining those individuals all the same. As law professor Meg Satterthwaite and human rights lawyer Rebecca Riddell write, “Under refugee law, the United States should provide everyone fleeing persecution or torture with a fair opportunity to make their claim for asylum or protection against deportation. Instead, Trump’s policy of ‘zero tolerance’ has wreaked havoc on the right to seek asylum.”

Earlier this week the Senate Democrats offered the Keep Families Together Act to invalidate the policy of family separation under most conditions, but that has gone largely ignored by the Republicans. The GOP, in turn, planned on introducing their own immigration overhaul late this week, but delayed it shortly after the president suggested they wait until after the November midterm elections. Unless urgent action is taken by Congress or the courts, Trump’s zero tolerance policy will result in the indefinite detention of tens of thousands of more migrants, and no justice will come to those who have already suffered under the policy.