Do not let Mr. Trump’s signing of an Executive Order on the spur of the moment on Wednesday lead you to believe that the problem of immigrant children being separated from their parents is solved. It is not. The soul of America continues to be at stake.
First, most legal scholars opine that an Executive Order was not necessary. No laws changed and no policy changed except that immigrant families would not automatically be separated. That could have been accomplished merely by a telephone call to the Secretary of Homeland Defense. The Order and signing ceremony was for show.
Second, the Order did not “fix” anything. There is a continuing Trump Administration created crisis on the border. As I stated in this space earlier this week, the crisis was created in order to force Congress to build Mr. Trump’s wall and as a hoped for deterrent to future immigrants. It back fired.
Third, a careful reading of the Order (found here) reveals that mostly all that changed is that now families will be detained together. The ramifications of that are complicated, as I will try to explain in a moment. It also gets the military involved in that it directs the Secretary of Defense “to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law.” One more mission for the military, which should not be in the business of taking care of immigrants, and by law (Posse Comitatus) cannot enforce the law.
(As an aside and a clue to how haphazard this process is in the White House, the title of the Order was “Affording Congress an Opportunity to Address Family Seperation.” Apparently no one owns spell checker in this Administration.)
Fourth, Mr. Trump continues to blame “the Democrats” for the state of affairs. Huh? The Republican party controls the White House, both Houses of Congress, and arguably, the Supreme Court. Yesterday, an immigration bill in the House of Representatives, that needed only Republican votes to pass, went down to defeat. A second bill addressing immigration was to be voted on yesterday but it has been deferred to next week — if it comes to a vote at all — because there were not enough Republican votes for it to pass.
The real heart of the matter however is this, roughly 2300 children are in the United States after being removed from their parents’ custody over the last six weeks and no one can confidently say that they know where they all are.
Republican and Democrat politicians, from Senators to Representatives to Governors to Mayors have tried to visit some of the known locations where the children are held in detention and they have not been allowed in. It is no surprise that the media has not been allowed to independently verify the condition of the facilities and the children. Our elected representatives are told by the federal government that they must put in a request to make any visits and that it will take about two weeks to process their applications to visit. A lot of cover up can take place in two weeks. What happened to oversight by our elected officials?
Where are the children?
As I write, they were moved to detention centers in fifteen states, in many cases thousands of miles from where the parents are held, including in my home county. One child in custody in our county is 18 months old. Others are not much older. Not understood by many people is that each of these children, with or without their parents, can be deported or ask for asylum. How does an 18 month old or even a six-year-old go find an attorney and go to court to ask for asylum?
Earlier the Trump Administration tried to use the young people here under the Deferred Action for Childhood Arrivals (DACA — or more familiarly the “Dreamers”) as a bargaining chip for the wall. The courts short-circuited that attempt. Then he tried using innocent children as a bargaining chip to get the wall. That was stopped — for now — by American citizens expressing their uneasiness with such an inhumane action. The next bargaining chip will be entire immigrant families held in detention camps.
If you have been paying close attention to this issue, you know that Mr. Trump made it very clear that his “zero tolerance” policy remains in effect. This creates a dilemma as most “family friendly” detention centers are full. That is why Mr. Trump included the Secretary of Defense in the Order. News reports indicate that the Defense Department was directed to provide tent cities on military bases in Texas and Arkansas to house 20,000 immigrants as families. This number seems to come from the estimate that should the separation policy have continued, by December of this year there would be about 19,000 children in custody and separated from their families.
The United States already lost its moral authority in the world. When pictures of vast tent cities holding families inside barbed wire fences on military bases, watched by armed guards, looking every bit like the internment camps for Japanese-Americans in World War II, we will be shown to have lost our soul.
A complicating factor is that under a judicial ruling, children can only be held in detention for about twenty days, which is why they are moved to places such as “tender age shelters“. There is no clear path for this administration to deal with that requirement while maintaining their zero tolerance policy. In the Order, the president directs the Attorney General to go to court to modify the judge’s ruling (you may have heard of it called the “Flores Settlement”) “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Since a “pendency” (settlement of a court case) can go for months and sometimes years when asking for asylum, we will have families being raised in captivity.
It gets worse.
There is a good chance that a fair number of the 2300 children already separated from their parents may never be reunited with them. Government officials, and loudly echoed by aid workers and attorneys trying to help these immigrants, concede that there is no clear process in place for matching parents and children after they are separated. Glaringly absent from the Order was any process to bring the various elements of the government together to try to figure out how to fix this problem. Not a word. Record keeping is a problem, language barriers are a problem, money is a problem. Immigrants arriving with only the clothes on their back don’t have the money to hire an attorney to unravel the bureaucracy or to go get their child who may be thousands of miles away, much less the same requirements for the children themselves to find their parents. The system is very haphazard. In my area alone, 300 of the children have been identified in various locations, and legal aids say that so far they have been able to find the parents of two of them.
The Trump Administration was either grossly unprepared for the practical aspects of their policy, or they just plain did not care. “(If people don’t want to be separated from their children, they should not bring them with them,” said Attorney General Jeff Sessions.)
Immigration is a difficult subject. It is complicated. Sometimes there are no good answers to intractable problems. There may even be more than one right answer to the issue. What we now know is that this Administration seems to pick the wrong answer and then make it worse.
Do not be fooled. This problem was not “fixed” by the president. It is just the beginning.