Last Saturday, the Washington Post ran an article detailing the government’s struggle to reunite migrant children with their parents. The Wall Street Journal ran a substantially similar article the day before. The gist of both was that the administration issued its now-countermanded family-separation policy with approximately no idea how it would eventually put the families back together. From the Post:
Customs and Border Protection databases had categories for “family units,” and “unaccompanied alien children” who arrive without parents. They did not have a distinct classification for more than 2,600 children who had been taken from their families and placed in government shelters.
So agents came up with a new term: “deleted family units.”
But when they sent that information to the refugee office at the Department of Health and Human Services, which was told to facilitate the reunifications, the office’s database did not have a column for families with that designation.
The crucial tool for fixing the problem was crippled. Caseworkers and government health officials had to sift by hand through the files of all the nearly 12,000 migrant children in HHS custody to figure out which ones had arrived with parents, where the adults were jailed and how to put the families back together. . . .
After his 30-day deadline to reunite the “deleted” families passed [last] Thursday, U.S. District Judge Dana M. Sabraw lambasted the government for its lack of preparation and coordination.
“There were three agencies, and each was like its own stovepipe. Each had its own boss, and they did not communicate,” Sabraw said Friday at a court hearing in San Diego. “What was lost in the process was the family. The parents didn’t know where the children were, and the children didn’t know where the parents were. And the government didn’t know either.”
This occasions a few thoughts.
1) The administration’s lack of due preparation should be judged in light of an important distinction my colleague Ramesh Ponnuru drew back in May: “If splitting up families is a side effect of immigration enforcement, as [Homeland Security Secretary Kirstjen] Nielsen suggests, the administration should do its best to minimize that side effect of ramped-up enforcement. If splitting up families is instead the means by which the administration seeks to enforce the law, as [White House Chief of Staff John] Kelly does, it should abandon the policy.” (Kelly had said that deterrence of illegal border crossings was “a big name of the game” but that the policy was not cruel because “the children [would] be taken care of — put into foster homes or whatever.”)
I’m sure different officials had different motivations or mixes of them. But if, on balance, the relevant decision-makers had seen the separations as a lamentable side effect to be minimized, wouldn’t the administration have bothered to prepare itself to put families back together after legal proceedings against the parents had concluded? On the other hand, you might expect an attitude of “or whatever” to prevail if the point was mainly deterrence and the separations were not especially regretted.
Why does the difference matter? We could get medieval and invoke the principle of double effect, which Thomas Aquinas introduced into moral philosophy. There are different ways of formulating the principle, but in this case they would converge in holding that the harm of family separation was justified only if: (a) it was a side effect of something good (law enforcement) rather than the means of achieving a good (deterrence), (b) the administration aimed at the good rather than the harm (with aiming at the harm understood to include aiming at it as a means to the good), and (c) the harm was not disproportionate to the good. It seems the administration failed to satisfy condition (a).
We might also invoke the Kantian imperative always to treat human beings as ends rather than means, which in many applications overlaps conceptually with the doctrine of double effect.
Without abstractions or minced words, what this comes down to is that the administration apparently decided it was okay to terrorize a bunch of children in order to deter illegal border crossers. Reservations about terrorizing a bunch of children in order to deter illegal border crossers probably seem altogether mushy to the Steve Bannons of the world, but they have an important pedigree in an American conservatism that opposed Communism and milder statisms in the belief that human beings, possessed as they are of innate and unalienable dignity, should not be reduced to the status of cogs in (often poorly functioning) machines.
2) The following detail, again from the Post, further supports the cog-in-machine interpretation: “Top officials thought that any controversy generated by the family separations could be parlayed into leverage for negotiations with Democrats over the Obama-era Deferred Action for Childhood Arrivals program and border wall funding, according to current and former DHS officials involved in planning the policy.”
3) I take very seriously the need for the administration to faithfully execute our nation’s laws. But I don’t think it was black-and-white that doing so in this case — if that had been the motive — would have justified terrorizing a bunch of children. Prosecutors and judges make discretionary choices all the time about whether to jail people charged with crimes or release them on their own recognizance. The Trump administration, unlike its predecessor, had no intention of simply declining to prosecute a category of illegal border crosser, and a Justice Department spokesman was not without reason when he told the Post that the administration’s “zero tolerance” policy remains in force since the department “continues to prosecute, to the extent practicable, all cases referred to [it].”
The problem was that, per judicial decree, the government could not hold children for more than 20 days, and if it released the parents with the children they often disappeared into the general population. I nonetheless think the administration had a duty to transition to more-effective enforcement methods only if it could do so without inflicting extreme suffering on the most innocent of people (see condition (c)). In deciding how to enforce the law, bedrock moral considerations should not cease to apply simply because the targets of enforcement are not U.S. citizens. The administration might have held parents and children together on an initially small enough scale that their cases could be resolved within 20 days while working with Congress to secure additional resources and/or expand the 20-day window. (For some related thoughts from Ramesh, go here.) This would have required both the administration and members of Congress — derelict, useless Congress — temporarily to give up maximalist policy goals in the name of not terrorizing a bunch of children.
4) The Journal reports: “American Civil Liberties Union lawyers said in a court filing [last] Wednesday [that] some parents who the government says agreed to be deported without their children were misled and didn’t understand the paperwork they were signing.” Conservatives, emphasizing as they do the importance of family, should be able to recognize that something truly evil has been done if that claim is true. They should also be especially alive to the possibility of bureaucratic coercion and abuse.