The Corner

Politics & Policy

Congress and Family Separation

Over at Bloomberg this morning, Ramesh gets at a key point about the administration’s assorted policy justifications of its (callous and morally unjustifiable) separation of families at the border.

President Donald Trump and his top aides have given America two main stories about the separation of families at our southern border: It’s an unfortunate byproduct of laws and court decisions that tie the administration’s hand, and it’s a necessary deterrent to illegal immigration. These are conflicting accounts.

This could hardly have been clearer in DHS Secretary Kirstjen Nielsen’s press briefing at the White House yesterday, which made for about as strong an argument against the administration’s policy as anything its critics have had to say.

As Secretary Nielsen advanced these contradictory arguments, however, it certainly did seem as though she was more comfortable with the first sort of justification (that the law ties the administration’s hands) than with the second (the case for deterrence). The same has been true of most of the administration officials who have spoken about the policy — with the notable exception of the Attorney General. And this suggests that the administration will ultimately need to acquiesce to a legislative change directed specifically to the policy it is pursuing. If they want to claim that they wish they could back down but only a change in law could allow for that, then they will have to accept a change in law. As Ramesh suggests:

An alternative policy would have three parts. The administration would stop enforcing its zero tolerance policy on adults traveling with children until it got changes in the law that enabled the humane detention of families. It would advance those changes in the law as a stand-alone measure rather than using legislators’ desire to keep children with their parents as leverage to win other immigration-related policy changes. And it would, separately, push for legislative changes that enabled other means of enforcing the immigration laws, such as punishing businesses whose new hires are illegal immigrants.

Really, though, these three steps boil down to one: Just don’t split up families when it’s not absolutely necessary. Among the advantages of this simple alternative is that the administration would find it easier to keep track of its storyline.

That seems exactly right to me. But I think the second step of those three would be necessary to make the first possible, as a practical and political matter at this point. The proposal Senator Ted Cruz has advanced offers that sort of way forward, and it’s worth supporting.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.