A Tiny Fig Leaf

Do not let Mr. Trump’s signing of an Executive Order on the spur of the moment on Wednesday lead you to believe that the problem of immigrant children being separated from their parents is solved.  It is not.  The soul of America continues to be at stake.

First, most legal scholars opine that an Executive Order was not necessary.  No laws changed and no policy changed except that immigrant families would not automatically be separated.  That could have been accomplished merely by a telephone call to the Secretary of Homeland Defense.  The Order and signing ceremony was for show.

Second, the Order did not “fix” anything.  There is a continuing Trump Administration created crisis on the border.  As I stated in this space earlier this week, the crisis was created in order to force Congress to build Mr. Trump’s wall and as a hoped for deterrent to future immigrants.  It back fired.

Third, a careful reading of the Order (found here) reveals that mostly all that changed is that now families will be detained together.  The ramifications of that are complicated, as I will try to explain in a moment.  It also gets the military involved in that it directs the Secretary of Defense “to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law.”  One more mission for the military, which should not be in the business of taking care of immigrants, and by law (Posse Comitatus) cannot enforce the law.

(As an aside and a clue to how haphazard this process is in the White House, the title of the Order was “Affording Congress an Opportunity to Address Family Seperation.”  Apparently no one owns spell checker in this Administration.)

Fourth, Mr. Trump continues to blame “the Democrats” for the state of affairs.  Huh?  The Republican party controls the White House, both Houses of Congress, and arguably, the Supreme Court.  Yesterday, an immigration bill in the House of Representatives, that needed only Republican votes to pass, went down to defeat.  A second bill addressing immigration was to be voted on yesterday but it has been deferred to next week — if it comes to a vote at all — because there were not enough Republican votes for it to pass.

The real heart of the matter however is this, roughly 2300 children are in the United States after being removed from their parents’ custody over the last six weeks and no one can confidently say that they know where they all are.

Republican and Democrat politicians, from Senators to Representatives to Governors to Mayors have tried to visit some of the known locations where the children are held in detention and they have not been allowed in.  It is no surprise that the media has not been allowed to independently verify the condition of the facilities and the children.  Our elected representatives are told by the federal government that they must put in a request to make any visits and that it will take about two weeks to process their applications to visit.  A lot of cover up can take place in two weeks.  What happened to oversight by our elected officials?

Where are the children?

As I write, they were moved to detention centers in fifteen states, in many cases thousands of miles from where the parents are held, including in my home county. One child in custody in our county is 18 months old.  Others are not much older.  Not understood by many people is that each of these children, with or without their parents, can be deported or ask for asylum.  How does an 18 month old or even a six-year-old go find an attorney and go to court to ask for asylum?

Earlier the Trump Administration tried to use the young people here under the Deferred Action for Childhood Arrivals (DACA — or more familiarly the “Dreamers”) as a bargaining chip for the wall.  The courts short-circuited that attempt.  Then he tried using innocent children as a bargaining chip to get the wall.  That was stopped — for now — by American citizens expressing their uneasiness with such an inhumane action.  The next bargaining chip will be entire immigrant families held in detention camps.

If you have been paying close attention to this issue, you know that Mr. Trump made it very clear that his “zero tolerance” policy remains in effect.  This creates a dilemma as most “family friendly” detention centers are full.  That is why Mr. Trump included the Secretary of Defense in the Order.  News reports indicate that the Defense Department was directed to provide tent cities on military bases in Texas and Arkansas to house 20,000 immigrants as families.  This number seems to come from the estimate that should the separation policy have continued, by December of this year there would be about 19,000 children in custody and separated from their families.

The United States already lost its moral authority in the world.  When pictures of vast tent cities holding families inside barbed wire fences on military bases, watched by armed guards, looking every bit like the internment camps for Japanese-Americans in World War II, we will be shown to have lost our soul.

A complicating factor is that under a judicial ruling, children can only be held in detention for about twenty days, which is why they are moved to places such as “tender age shelters“.  There is no clear path for this administration to deal with that requirement while maintaining their zero tolerance policy.  In the Order, the president directs the Attorney General to go to court to modify the judge’s ruling (you may have heard of it called the “Flores Settlement”) “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

Since a “pendency” (settlement of a court case) can go for months and sometimes years when asking for asylum, we will have families being raised in captivity.

It gets worse.

There is a good chance that a fair number of the 2300 children already separated from their parents may never be reunited with them.  Government officials, and loudly echoed by aid workers and attorneys trying to help these immigrants, concede that there is no clear process in place for matching parents and children after they are separated.  Glaringly absent from the Order was any process to bring the various elements of the government together to try to figure out how to fix this problem.  Not a word.  Record keeping is a problem, language barriers are a problem, money is a problem. Immigrants arriving with only the clothes on their back don’t have the money to hire an attorney to unravel the bureaucracy or to go get their child who may be thousands of miles away, much less the same requirements for the children themselves to find their parents.  The system is very haphazard.  In my area alone, 300 of the children have been identified in various locations, and legal aids say that so far they have been able to find the parents of two of them.

The Trump Administration was either grossly unprepared for the practical aspects of their policy, or they just plain did not care. “(If people don’t want to be separated from their children, they should not bring them with them,” said Attorney General Jeff Sessions.)

Immigration is a difficult subject.  It is complicated.  Sometimes there are no good answers to intractable problems.  There may even be more than one right answer to the issue.  What we now know is that this Administration seems to pick the wrong answer and then make it worse.

Do not be fooled.  This problem was not “fixed” by the president.  It is just the beginning.


The Tumbling Tumbleweed

Yesterday the Trump Administration put a six month limit on the continued use of the Deferred Action for Childhood Arrivals (DACA) policy that was in effect for roughly the last five years.  This is the order that allowed undocumented immigrants brought here as children, with no say in the matter, to stay in the United States as long as they met certain criteria.  You may know the recipients of this policy as Dreamers, which came from the Congressional DREAM Act (Development, Relief, and Education for Alien Minors Act) which is legislation proposed in Congress in various forms since 2001 with chances of passage in either the House or the Senate, but never both at the same time.  After the last failure, President Obama in 2012 put the DACA into practice.  The criteria for being designated as a Dreamer are as follows, although under the policy, meeting these criteria does not automatically qualify the applicant as a Dreamer.  They had to:

  • Come to the United States before their 16th birthday
  • Live continuously in the United States since June 15, 2007
  • Be under age 31 on June 15, 2012 (i.e., born on June 16, 1981 or after)
  • Be physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with US Custom and Immigration Service
  • Have no lawful status on June 15, 2012
  • Have completed high school or have a certified GED or have an honorable discharge from the Armed Forces or be enrolled in school
  • Have no convictions of a felony or serious misdemeanors, or three or more other misdemeanors, and not otherwise pose a threat to national security or public safety.

It is estimated that there are approximately 800,000 registered Dreamers in the United States.

“Registered” could be a problem because they were promised no retribution if they came in out of the shadows and became useful members of society.  How many are now waiting for the knock on the door that they thought would not be of concern to them?  The talking points distributed by the Administration includes this advice to the Dreamers.

The Department of Homeland Security urges DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States — including proactively seeking travel documentation — or to apply for other immigration benefits for which they may be eligible.

No worries.  They will just go back to a country where they probably know no one and do not even speak the language.  Sure.

There is much ado about how “conflicted” Mr. Trump is about this decision because he wants to follow the rule of law and yet he has “great heart” and “loves” the Dreamers.  Just ask him.  His administration portrayed the decision as a moral dilemma.  Hogwash.  Mr. Trump has about as good of a moral compass as a tumbleweed.  Over time, Mr. Trump has had as many moral and political positions on the widest variety of issues as anyone known to have achieved elected office.  You name a position, and he has had it at one time or another, including on Dreamers.

Mr. Trump is not conflicted over moral decisions.  He is only conflicted in terms of what gives him the best political outcome.  In this case, he got himself into a dilemma because there is no good political outcome.  All he cares about is “winning” and not what the impact of the policy might be.  Follow his argument in the ensuing paragraphs and see how circuitous and illogical it actually turns out to be.

His primary purpose for announcing this change in policy now, under less than optimal circumstances given the need before the end of September to raise the debt limit, pass a budget, provide aid to the victims of Hurricane Harvey, deal with the crisis in North Korea, and prepare for what looks to be another major crisis from Hurricane Irma, to name just a few things hanging over our heads, is to satisfy the hard-liners in his base — which continues to shrink.  Arguably, on this issue he is not even following his base.  Most polls show that about 75% of Americans approve of DACA and only about 15% say the Dreamers should be deported.  Of Trump supporters only 25% say the Dreamers should be deported and about 70% think that DACA should stay in place.

Mr. Trump’s motivation is only and purely political. Yesterday, he showed that he does not have the fortitude to stand by the tough calls.  We all know his penchant for the big show and, as he calls them “ratings.”  So here is a big “tell” — he was nowhere to be found when the announcement that DACA would end was made by Attorney General Jeff Sessions.  The Attorney General took no questions from the press after the announcement.  Mr. Trump demonstrated no sense of responsibility for his decision, even as his press secretary constantly turned all questions to Congress and away from Mr. Trump.

There was no moral dilemma for Mr. Trump.  I would say there never is one that impacts his thinking, but I digress.  Instead of addressing the issue, he passed it to Congress in a very Pontius Pilate kind of way.  He washes his hands of it.  If in six months there is no new DREAM Act or something like it, then it is not his fault.  Oh by the way, Mr. Trump gave absolutely no guidance to Congress as to what kind of bill it should be, what he wants to see (or not see) in it, and what problems it should solve.  No guidance whatsoever.  Like many issues, he provided no leadership on the issue.  I suppose as with health care legislation, “I am sitting with pen in hand” to sign a bill.  Any bill.  We are winning.  If nothing passes it is not his fault.  If it does pass he will be the first to proclaim that he solved the problem.  A huge problem.

Mr. Trump cannot take the lead on solving the Dreamer problem because if he does, it will undermine the entire basis of his campaign and post-election rhetoric.  His demagoguery is based on the argument that immigrants are stealing jobs.  But he suspected, and now knows, that there will be a big backlash to heartlessly tossing out young people that are Americans in every way except on paper. Mr. Trump needs to prop up his campaign lies (fact checkers now have him at 1,114 false or misleading statements in the first 227 days of his administration) that deportation helps US jobs.

He rose to prominence as an anti-immigrant fear monger, starting with the despicable “Birther Movement” claiming President Obama was not an American.  Since then has built his coalition around being anti-immigrant.  Simply compare the record of the average Dreamer and what they have done for America (and perhaps more importantly what they will do in the future) to all of the accomplishments of Mr. Trump’s hero, Sheriff Joe Arpaio.

Even with that, he cannot be consistent.  Mr. Trump makes an economic argument as to why we should deport all undocumented immigrants because they are taking all the jobs.  But then he turns around and pushes Congress to pass a law to keep them.  Great logic, great morality, great demagoguery.

Houston, we have a problem.  Who is going to rebuild following Hurricane Harvey?  Who does Mr. Trump think is going to do the construction and hard-core clean up following the destruction experienced across many, many square miles of Houston, east Texas and Louisiana? Sure, let’s get rid of all those hard-working $10 an hour folks and bring in, who exactly?  Get real.

Most people may understand what Mr. Trump’s decision means on personal terms to those impacted. Most, however, probably do not understand the economic impact.  Every major CEO and most small business owners opposed the termination of DACA based on economic factors.  Studies indicate that about 91% of all Dreamers are employed.  As their work permits expire, about 30,000 will lose their jobs each month. That translates to lots of lost productivity and expertise for the their employers and adds up to reducing the national gross domestic product by $433 billion (yes, with a B) over ten years.  It also means the loss of nearly $25 billion (another B!) dollars in taxes to programs such as Medicare and Social Security.  (Yes, Dreamers pay taxes.)

None of that takes into account the Dreamers currently serving on the front lines in Iraq and Afghanistan and elsewhere.  What happens to them?  What happens to the veterans that honorably served this nation? Just throw them out?

There clearly are some Constitutional issues.  These are worthy of consideration and debate.  Clearly Congress should shoulder the burden and do their job, as they should do in so many areas where they seem unable to govern.  Usually, however, Constitutional issues get settled in the courts, not by a unilateral decision on the part of Mr. Trump or Attorney General Sessions.  As I write, many state Attorneys General have spoken up and plan to take Mr. Trump’s decision to court.  We shall see how that unfolds.

But let me ask this rhetorical question.  Early in his administration, Mr. Trump’s Muslim Ban was touted as being totally within the Constitutional bounds of his office.  They argued that he had “extraordinary powers” in cases of immigration and was totally within the power of the office to keep people out. Does it not seem logical that if Mr. Trump can keep people out, he can also use that power to keep them in?

In all, I find this one more example of a tumbling tumbleweed administration.  Mr. Trump is just blowing in the wind, merely reacting day-to-day with no particular vision (and according to reported sources inside the White House, no understanding of the issues or their implications) other than keeping the dedicated base cheering at his campaign rallies.  And oh, spending time watching “the shows” on television and tweeting.