One presidential administration enters into a consent decree that creates a “nationwide policy for the detention, release, and treatment of minors in the custody” of federal immigration authorities and makes it binding on future administrations. Another administration unilaterally implements a “catch and release” policy for illegal immigrants that works to incentivize additional illegal immigration — including illegal immigration by families with kids. The next administration reverses course, adopting a so-called zero-tolerance policy that effectively combines with the consent decree to create a new punishment for the misdemeanor offense of illegal entry into the United States: family separation, including the separation of very young children from their parents.
Think about the chain of events. A consent decree creates new law without a statute and without even regulatory rulemaking. Massive exercises of “prosecutorial discretion” can either effectively write a statute out of the U.S. Code or enhance its penalties well beyond the legislative intent. At each turn, the president doesn’t just enforce the law, he makes the law — with Americans increasingly dependent on the character and wisdom of the man in the Oval Office to prevent abuse.
The Founders shudder.
No matter where you stand on the merits of Trump’s border crackdown, it simply strains credulity to believe that Congress intended family separation to be a natural and inevitable consequence of prosecuting unlawful entry. Nowhere is there evidence that Congress has intended family separation as a deterrent against illegal immigration. Yet, here we are. A president has acted, the public is reacting, and the confidence in Congress to assert reasonable control is so low that it can’t be located with an electron microscope.
It’s time, Congress. It’s time to start the process of taking back your constitutional authority. If you can’t do it by taking the baby step of prohibiting draconian family separations in the routine enforcement of immigration law, one wonders if you’ll ever be able to do it.
It’s time, Congress. It’s time to start the process of taking back your constitutional authority. If you can’t do it by taking the baby step of prohibiting draconian family separations in the routine enforcement of immigration law, one wonders if you’ll ever be able to do it. If you can’t pass legislation permitting families to be held together, then you’re a servant of the executive branch. You’re bonded to settlement agreements executed without your consent.
Yes, activists are right when they say that Trump could stop family separations tomorrow, if he wished. But the best check on the president isn’t hashtags or press releases or think pieces. It’s the check the Founders designed: an active Congress exercising its lawful authority over immigration in America.
It’s a sad sign of the times that a piece like this will likely be viewed by some (most?) readers as naïve — as not proposing “real solutions,” because “everyone knows” Congress has its head so far up its partisan arse that it has forgotten the art of political compromise and largely abandoned reasoned debate. And those readers will probably be right. After all, Congress has happily delegated vast amounts of its constitutional power to the president, and shown no sign that it intends to take it back.
Is anyone furious that President Trump is risking a booming economy and vital allied relationships with potentially harmful tariffs? Ask why Congress has delegated so much trade authority to the White House. Are you uncomfortable that presidents seem to launch military strikes at will? Ask multiple Congresses what they’ve done to preserve the exclusive legislative power to declare war. Congress is now passing bills filled with huge, intentional gaps — with the full knowledge that the executive will eagerly promulgate new regulations to fill them in. Then it watches presidents rule with “pen and phone” and evaluates unilateral action based on the outcome, rather than on the fatally flawed process that led to it.
If you wonder why Americans feel increasingly disconnected from the federal government and impotent in the face of its awesome power, well, how should they feel when their one vote out of 130 million for president seems like the only chance they have to be heard, and like even that matters so darn little?
Yes, I want the president to end his administration’s family-separation policy. He doesn’t need Congress to do the right thing. America can secure its border without taking a child from his mother’s arms to prosecute a misdemeanor. And if Trump ceases the practice tomorrow, then I’ll be grateful that he relented. But the health of our constitutional republic shouldn’t depend so much on presidential wisdom. Today there’s a sense of urgency. There’s a bipartisan cry to “do something.” And there is, in fact, “something” to do. Congress can pass a law, and if it’s focused, open to compromise, and creative, it can do so by such a margin as to override the will of the president. It should do so, and there’s no better time than now.