DANIEL VAUGHAN: Congress needs to act on the border

June 22, 2018

To be frank: the national discussion on the immigration issue is full of half-baked opinions from people who know very little on the topic. It would help to know a brief history of the legal issues surrounding family separation, to place the entire situation in proper context.

On April 6, Attorney General Jeff Sessions announced a “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.

He later released a memo expanding that zero-tolerance prosecution for statutes 8 USC § 1324 – 26, along with two aggravating factors in prosecution focusing on identity theft and assaulting a police officer.

Those statutes are part of the U.S. code that deals with immigration which was first created by Congress under the Immigration and Nationality Act of 1952. As you might guess, those laws have been amended over the years.

The specific statutes important for our purposes, however, were last modified by Congress in 1996 in the Illegal Immigration Reform and Immigrant Responsibility Act.

(As an aside, when people say Democrats passed the laws that are at issue, in this case, that’s what they’re referring to. The IIRIRA was enacted by a GOP Congress and signed into law by Bill Clinton.)

The Justice Department has an excellent summary of all the above laws, reading:

Section 1325 sets forth criminal offenses relating to (1) improper entry into the United States by an alien, (2) entry into marriage for the purpose of evading immigration laws, and (3) establishing a commercial enterprise for the purpose of evading immigration laws. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended 8 U.S.C. § 1325 to provide that an alien apprehended while entering or attempting to enter the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty.

You’ll note from these statutes and the DOJ’s interpretation that none of them deal with the issue of child separation. I’ll get to that in a moment.

It’s been against the law for decades to enter the U.S. illegally. The Sessions memo merely meant is that U.S. prosecutors on the border would prosecute every single case of illegal crossing that comes across their desk.

Previously, not all instances were prosecuted, for a wide variety of reasons.

Still, the zero-tolerance policy isn’t new. The current version was molded in part after Operation Streamline, a program under George W. Bush in the mid-2000’s.

Facing a massive spike of people pouring across the border, the Bush DOJ sought to speed up the prosecutions of illegal border crossers to get them back to their countries faster. The critical part for us is that the Bush program automatically prosecuted everyone except people traveling with children.

It was more of a procedural problem than anything else. Federal law only prosecutes the parents, not the children traveling with them.

Federal prosecutors mostly didn’t pursue traveling families during this time because the options were: 1) Separate the children from the families, even though there isn’t a system set up to handle the children; 2) Prosecute the parents and keep families together, but in this instance, you’re imprisoning children (the ACLU objected to this during the Obama admin); or 3) Not prosecute.

For all intents and purposes, with rare exception, both the Bush and Obama White Houses chose option three: not prosecuting families. Obama mostly kept Operation Streamline in place, with tweaks that came up due to changes in the law.

Everyone continued to be prosecuted, which is one reason Obama deported more people than the entire sum of all presidents in the 20th Century.

The Sessions memo changed this by telling families they no longer received an unspoken exemption and would be prosecuted like anyone else. The Sessions DOJ chose to go with family separation instead of keeping families imprisoned together.

Sessions explained early on that this was a deterrent — telling families up front that they could get split up if they chose to enter illegally.

The entire procedure for family separation is mostly ad-hoc decision making by agencies. They’re creating solutions to issues Congress never considered.

And in the end, this is the real issue. The Executive Branch is writing executive orders on topics where Congress must step in to correct the problem.

Federal agencies handling various immigration issues aren’t prepared or equipped with the legal boundaries or national resources to handle separating families at the border. Nor are any of them staffed with enough people or resources to handle a no-tolerance case-load.

Congress has the power of the purse and creating law, and the only way a true solution on the border emerges is if Congress provides the solution.

President Donald Trump is tasked with enforcing the laws, not writing them.

It’s time for Congress to step up to the plate.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.