How do we enforce immigration law when children are involved?

By | June 19, 2018

This isn’t getting the “On Changing Opinions” tag of my last few posts because, well, it isn’t a new opinion. In fact in this post I’m not even going to spend time on my actual opinion, which is that immigration shouldn’t be illegal at all.

Alas, that’s not likely to happen. So instead, I want to talk about how we in the United States are treating undocumented children.

Here’s what I won’t be wasting time arguing about, and I will actively delete comments that attempt to engage on these four points:

  • Who started it
  • Whose fault it is
  • Which President is to blame
  • Which party’s policies are best

Clear? Great.

I should also point out that it’s maddeningly difficult to find primary sources for a lot of this stuff. For example, I spent nearly two hours searching and couldn’t find a specific answer to the question of whether it’s illegal for ICE to arrest and detain a child in the same way it may arrest and detain an adult.

Off the top of my head, I can only see a few approaches to solving this problem, all of which have significant downsides.

  1. Arrest the kids along with their parents, but my understanding is that this is illegal. While I have been unable to find a primary source for this statement, it seems obvious that it’s an undesirable outcome to put children in jail, even if it’s with their parents.
  2. Immediately deport all illegal immigrants. This has the significant problem of violating the right to due process for anyone who is *wrongly* suspected of being an illegal immigrant, and IMO isn’t a workable solution.
  3. Arrest the parents, and put the kids into someone else’s hands to care for (whether that’s relatives or a foster-care-like system or something else). This is similar in most ways to how the current system is apparently supposed to work, and obviously it isn’t working. It may be possible to fix the implementation problems with the current approach but I don’t know enough yet to have specific suggestions.
  4. Let people with kids go, without arresting them. While this is probably the simplest solution of the four I’ve suggested, this is effectively the same as not enforcing immigration law for anyone that has a child, and is therefore (for better or worse) an unacceptable solution for a large portion of the population.

I’ve seen it suggested that the President could solve this problem with a single phone call. For the sake of argument (because I don’t believe for a moment Trump is reasonable), let’s suppose he is willing to make that call. Who exactly would the President call, and what would the instruction be? Would that person be legally required to follow that instruction?

Suppose, for example, that Trump calls the Director of ICE. ICE is part of the Department of Homeland Security, and DHS is a Cabinet agency belonging to the Executive branch, so in theory, ICE answers to Trump and has to do what he says. In theory.

In practice, I’m not so sure. ICE’s mandate is to enforce United States immigration law, which is set by Congress, not by the President. Is it legal for the President to tell an agency to not enforce a law? If the President gives such an instruction, is it legal for ICE to obey that instruction? Sure, ideally we shouldn’t enforce unjust laws, but nothing is that simple in practice, and pretending anything is that simple where the federal government is concerned is, at best, wishful thinking.

But let’s say Trump did call up the Director of ICE and say “stop detaining kids immediately”, and let’s say the entire agency is willing to follow that instruction. I don’t think a Presidential instruction could realistically be expected to remain in force indefinitely, since the problem is that immigration law requires much (most?) of what people are objecting to.

No, we need Congress to step in and change immigration law, and we need to make sure they know they should do it. Please, contact your state representative and senators and ask them to support immigration reform to address these issues — and tell them they should do it soon. I’ve just done so, and every person helps.

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