Foreign Policy Blogs

Children at the Border, Part 1: Hostage Taking as Bargaining Tactic

Attorney General Jeff Sessions has quoted a Bible verse, which merely says to obey the law, to justify taking children from their parents. (Photo: U.S. Department of Justice)

This is the first of two parts.

Has the Donald Trump administration instituted a practice of using children as hostages in Congressional negotiations? In April the administration introduced an extraordinary policy of separating children from their families in the case of people crossing the border illegally and, apparently, in the case of some legal entrants as well. The reasons given for doing this have varied. Attorney General Jeff Sessions told us it was a conscious policy intended to deter people from even trying to cross the border. Secretary of Homeland Security Kirstjen Nielsen asserted that there was no such policy at all. After its unpopularity was highlighted, Trump declared that it had been forced on the administration by a law passed by Democrats. The latter argument suggests that the Trump administration had given up on even trying to make sense. This was a matter of discretion. And, by the way, the administration had been talking about intentionally separating children from parents as a deterrent for over a year.

Technically, the new policy—known as Zero Tolerance—was to subject adults crossing the border illegally to criminal prosecution, of which family separation is merely a foreseeable—and intended—consequence. Presumably, this is why Nielsen believed she could argue that there was no new policy of family separation; criminal prosecution was the new policy. The new Zero Tolerance approach was consistent with the law, but it was in no sense required by the law. Crossing the border without authorization is a federal misdemeanor (only reentry after deportation being a felony). Previous administrations, including Trump’s until April, dealt with it in a civil procedure. The typical sentence in such cases is time served, a $10 fine, and immediate removal. Criminal prosecution requires detention in a federal facility. Under a 1997 consent decree known as the Flores settlement (from the case Flores v. Reno), children cannot be kept in detention for more than 20 days. That is the root of the dilemma.

Since the children cannot be detained for long, previous administrations have released detained families and told them to come back when their court hearing is scheduled, which can be after a considerable time. The Trump administration and its supporters refer to this as “catch and release” and assert that, once released, none of those people will ever come back. Having anticipated that outcome, they apparently conclude that it must be true. Otherwise, by “none” they must mean 99.8 percent. According to NPR’s John Burnett, Immigration and Customs Enforcement (ICE) officials recently told him that “99.8 percent of participants enrolled in alternatives to detention successfully make it to immigration court.” (Alternatives to detention may include electronic ankle monitors and periodic check-ins with ICE, telephone check-ins with electronic voice recognition, or a mobile phone app called SmartLINK.) This is the basis on which the Trump administration detains thousands of people, separates their children from them, transfers the children to the Department of Homeland Security Office of Refugee Resettlement (ORR), and then transports those children to other states with no provision made for how they are to be reunited (because the ORR system was not designed for small children, toddlers, and infants taken from their parents).

It should be noted that, despite the rhetoric, the administration was still not prosecuting all immigration violations. As former U.S. Attorney Barbara McQuade has pointed out, the Justice Department prosecutes roughly 70,000 cases a year, including about 20,000 immigration offenses. Prosecuting all immigration offenses would raise the total to 300,000, which would overwhelm the department’s capacity even if it were to drop all other cases. The rest were still being “caught and released.” Nevertheless, the number of people detained for prosecution has risen sharply.

Why was this happening? It may be that the administration created a needless crisis precisely so that it could offer to end it as a “concession” in return for concessions from Democrats in Congress.

The CHIP Model

A possible model for this can be seen in last year’s controversy regarding of the Children’s Health Insurance Program (CHIP). CHIP was created in the 1990s by the Clinton administration and a Republican Congress. It has not been a center of controversy; unlike the Affordable Care Act, Republicans had not made an issue of repealing it. Nevertheless, it was allowed to expire at the end of September 2017. Little action would have been required to renew it, but Congress’s Republican leaders claimed they were simply too busy to attend to it. Many pundits and commentators were left confused.

To understand the fate of CHIP, it is necessary to examine what else was happening at that time. Congress had returned from its summer recess with a large agenda of unattended items that had to be addressed by September 30. These included funding for emergency hurricane relief, appropriations to keep the government running in the fiscal year starting October 1, and a vote to raise the debt ceiling. In particular, the need to raise the debt ceiling was—as repeatedly in the past—indisputably necessary but politically hazardous because many voters interpret such votes as fiscally irresponsible, a view that Republicans have done much to encourage. (In actuality, they merely authorize the government to make payments to which it has already obligated itself through the appropriations process.) Congressional leaders would need at least some Democratic votes on the appropriations and debt questions because some Republicans, as a matter of principle, refuse to vote for spending or for anything related to debt regardless of the circumstances.

Trump, in one of his more effective moments as president, bypassed the Republican leadership and made a deal directly with Democrats for votes to fund hurricane relief and to postpone the appropriations (by means of a continuing resolution) and debt ceiling decisions until December 8. Republican leaders were irate, although unwilling to contradict the president in public. Not only had they been left out of the negotiations, but the outcome would require them to take unpopular votes in September and then again in December. (They had wanted to push the debt ceiling decision, in particular, past the 2018 midterm elections.) Moreover, they would need to win Democratic votes again in December, and the Democrats would demand concessions. Compromising with Democrats—and giving them leverage over Republicans in decision making—is always unpopular these days, especially within the House Republican caucus.

At about the same time, perhaps to appease his Republican colleagues, Trump revoked President Barack Obama’s executive order authorizing Deferred Action for Childhood Arrivals (DACA), a program that allowed people who had been brought into the country illegally as children to remain and acquire work permits. DACA was popular among Democrats but not among Republicans. (Although Republicans insisted that Obama’s original DACA executive order was unconstitutional, it’s Trump’s order revoking it that has been held up by the courts.)

So, what did the Republicans in Congress do? They allowed CHIP to expire, creating a new, unrelated crisis in which concern, while widespread, was especially strong among Democratic constituents. A few months later, they magnanimously agreed to renew CHIP in a deal that effectively killed a Democratic demand to renew DACA in the form of legislation. It appears that the whole situation had been invented solely so it could be given away as a “concession” in return for real concessions from the other side.

Continued in Children at the Border, Part 2: Failure, Chaos, and Deceit