Congressional Democrats to Blame for Conditions at the Border

In case you've been living in a bubble, the president and House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) have been in a spat on Twitter recently about crime, trash, and rats in Charm City, as my hometown of Baltimore is colloquially, if often ironically, known. That spat reveals the almost completely unreported blame that Congress, and congressional Democrats, bear in the conditions of border detention, for which they are attempting to blame the president.

It started with the following exchange between Cummings and Acting Homeland Security Secretary Kevin McAleenan at a committee hearing on July 18:

In the course of his questioning of McAleenan, Cummings wondered whether there might be an "empathy deficit" among government employees at the border. He then asked how much money was being spent on enforcement, and McAleenan explained that Border Patrol (BP) receives approximately $15 billion in funding per year.

Cummings thereafter pounced: "You feel like you are doing a great job, right?" McAleenan responded: "We are doing our level best in a very challenging situation." Or at least tried to say that, because Cummings began to vent his spleen at that juncture on the acting secretary: "What does that mean?! What does that mean when a child is sitting in their own feces?! Can't take a shower?! C'mon man!!"

He continued:

What's that about?! None of us would have our child in that position! They are human beings! ... I want to make sure they are okay. I want to make sure they are not defecating in some silver paper.

McAleenan calmly responded with descriptions of agents holding children and preparing formula for them. He also assured Cummings that: "No one is defecating in a mylar blanket." You do not need to trust me on the exclamation points or McAleenan's demeanor in response. You can watch the video yourself.

This prompted the president to issue the following tweets on July 27:

Trump received an immediate response, not the most understated of which came from Cummings' hometown newspaper, the Baltimore Sun. The afternoon of Trump's tweet, the editorial board of that paper published an editorial captioned "Better to have a few rats than to be one". The headline gives away the plot, but here in any case is the key excerpt:

The congressman has been a thorn in this president's side, and Mr. Trump sees attacking African American members of Congress as good politics, as it both warms the cockles of the white supremacists who love him and causes so many of the thoughtful people who don't to scream. President Trump bad-mouthed Baltimore in order to make a point that the border camps are "clean, efficient & well run," which, of course, they are not — unless you are fine with all the overcrowding, squalor, cages and deprivation to be found in what the Department of Homeland Security's own inspector-general recently called "a ticking time bomb."

Such clear-eyed, objective analysis from the editorial board of my local paper not only provides a feedback loop to its own prejudices and reveals the city's own insecurities, but more importantly shows a misunderstanding of why immigration detention is in the shape it is.

More on that below, but before I continue, the editorial board was so pleased with itself that it has made "BETTER TO HAVE A FEW RATS THAN TO BE ONE" t-shirts the cornerstone of its "Baltimore Proud Collection" of apparel. I myself have several reasons to be "Baltimore Proud", but the quality of its paper of record is not one of them, and the supercilious attitude expressed in the excerpt above does nothing to improve that.

Former Sun columnist H.L. Mencken once said: "The most dangerous man to any government is the man who is able to think things out for himself, without regard to the prevailing superstitions and taboos." With that admonition in mind, let's be dangerous and take a look at Chairman Cummings' allegations, and the Sun's assessment.

From the exchange above, it would appear that Cummings does not believe that the Department of Homeland Security (DHS) is doing its "level best in a very challenging situation", but rather is keeping children in filth and deprivation deliberately, to some end that is not entirely clear. The Sun would likely ascribe it to the president's (and his supporters') racism, but let's just assume that it is to dissuade future entrants.

The Congressional Research Service (CRS), which works for Chairman Cummings and the other 534 members of Congress, notes that:

Article 1 [of the Convention Against Torture (CAT)] specifies that, for purposes of the Convention, "torture" is understood to mean

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

When I was a judge, I heard many Haitian CAT claims in which the applicant asserted that the government of Haiti was deliberately creating conditions in its prisons, like the ones Chairman Cummings believes are occurring in detention centers at the border, as a form of torture. Denying a person the ability to shower or access to modern toilet facilities generally does not rise to the level of "torture" for purposes of CAT, but when that person is a child of tender years, it can get pretty close. Even the most diligent parent is likely familiar with "diaper rash", a skin condition in infants and toddlers usually caused by prolonged contact between urine or feces and the skin, and which can lead to significant pain and more serious conditions if left untreated.

Assurance that the United States is in compliance with CAT is a duty that is imposed on all government officials, including members of Congress. There's no indication, however, that Chairman Cummings or any other representative has reported DHS or the United States government generally to the United Nations for violations of that convention.

Seriously, however, does the chairman of the House Oversight and Reform Committee not believe that BP agents are doing everything that they can to accommodate the children who are entrusted to their care? That is an extremely strong indictment, and a "C'mon man!" does not rise to the level of proof.

The truth is much more complicated, less amenable to sophomoric slogans on t-shirts, and, respectfully, less flattering to Chairman Cummings than either the vermin problem in his hometown or the president's thoughts about his service to his district. To understand that truth, one needs to understand why Kevin McAleenan was an odd target for Elijah Cummings' abuse to begin with.

I explained the mechanics of the conditions at the border in a July 3, 2019, post captioned "Why Pelosi Caved on Border Funding Bill":

On June 27, 2019, the U.S. House of Representatives passed a Senate-sponsored bipartisan bill that would provide $4.6 billion in additional aid to fund border operations, and in particular to fund housing for unaccompanied alien children (UAC) apprehended along the Southwest border. As Reuters described it: "In victory for Trump, U.S. House Democrats back down on border aid bill demands." Speaker of the House Nancy Pelosi had to push back far-left members of her own conference who wanted to add further restrictions on immigration enforcement to pass that bill for a simple reason: she had no choice.

It was an abrogation of duty for both parties in both Houses to have waited so long to finally pass funding. As I noted in a June 26, 2019, post captioned "If You Are Just Now Angry About UAC Detention, You Haven't Been Paying Attention", President Trump asked for that funding on May 1, 2019, and acting Homeland Security Secretary Kevin McAleenan made an impassioned plea to the press to underscore the need for that funding 29 days later:

Over 2,350 unaccompanied children — the highest level ever — are currently in custody waiting for days for placements in border stations that cannot provide appropriate conditions for them because Health and Human Services [HHS] is out of bed space and Congress has failed to act on the administration's emergency supplemental request for more than four weeks.

Nobody believed him then, apparently, because there was no legislative action until June 19, 2019, when the Senate Appropriations Committee advanced to the floor of the Senate a "Bipartisan Border Supplemental Package" that "provides a total of $4.59 billion to address the border crisis."

Let me be plain: The reasons the president asked for that funding were clear from the day of his May 1 request:

The Trump Administration is seeking a supplemental appropriation of $4.5 billion to address the immediate humanitarian crisis on the southern border.

$3.3 billion of this request will fund humanitarian assistance, including funds to increase shelter capacity, to feed and care for migrants in custody, and for transportation.

More than $2.8 billion will go to increase Health and Human Services (HHS) shelter capacity for Unaccompanied Alien Children (UAC) to approximately 23,600 beds.

Department of Homeland Security will receive $273 million to stand up, operate, and secure processing centers at the southern border, increasing its capacity by 3,500 beds.

$1.1 billion will go to border operations, including personnel expenses, additional detention beds, and operations combating human smuggling and trafficking.

$178 million will be used to fund mission support, including $10 million to improve migrant processing by upgrading information technology systems. [Emphasis added.]

McAleenan was literally asking for the resources that Chairman Cummings complained were not available 87 days later because of congressional inaction.

Given Elijah Cummings' passion about children and the conditions under which they were kept, why didn't Congress act sooner? Politics, and in particular the fact that congressional Democrats don't like Donald Trump's enforcement of the very laws they wrote.

Want proof? On May 1, the day the president asked for that funding, Chairman Nita Lowey (D-N.Y.) of the House Appropriations Committee, criticized that request:

Through its callous immigration policies, the Trump administration has contributed to a humanitarian emergency on the border. As a country, we must do more to meet the needs of migrants — especially children and families — who are arriving in increasing numbers.

However, the Trump administration appears to want much of this $4.5 billion emergency supplemental request to double down on cruel and ill-conceived policies, including bailing out ICE for overspending on detention beds and expanding family detention. Locking up people who pose no threat to the community for ever-longer periods of time is not a solution to the problems at the border.

House Democrats take seriously our responsibility to uphold our values and secure our borders. We will carefully review this request in its totality and, where possible, work with the Senate and the White House to make conditions at the border more humane.

"[W]here possible?" The United States government is the richest, most powerful entity on the face of the earth. It can scrape together $2.8 billion for 23,600 HHS shelter beds to get children out of BP stations that were built in the last millennium to briefly hold single adult males, those stations' detainees at the time of construction.

The bill the House initially passed (on June 25 — 55 days after the White House request) contained numerous restrictions on immigration-enforcement efforts and extraneous items that were not included in its bipartisan Senate companion. In other words, House Democrats were playing politics with funding for children.

Their statement on the passage of that bill shows that they could have acted earlier, but didn't:

The House today passed legislation to provide urgently needed humanitarian assistance for migrants at the southern border.

...

"Tens of thousands of migrants at the border — many of them children — are in dire need. And with agencies stretched beyond capacity and nearly out of money, they can't afford for Congress or the administration to play games with humanitarian assistance," said House Appropriations Committee Chairwoman Nita Lowey. "That's why this bill is so important. It would provide necessary funds for urgent humanitarian needs including food, diapers, and blankets. It would provide stringent safeguards to ensure funds are used only for humanitarian needs and nothing else. And it would protect the human rights and dignity of migrants, including by strengthening protections and standards of care for unaccompanied children. I urge the Senate and the President to quickly move this bill forward. We must enact relief without delay." [Emphasis in the original.]

Two days later, she and her boss, the speaker of the House, were forced to accede to a less restrictive Senate bill, after conditions at the border festered for lack of funding to such a degree that even a malleable and compliant press was likely to start asking unpleasant questions.

I will note as an aside that the chairwoman's May 1 statement begs the question of how the Trump administration's immigration policies were "callous" or even how they "contributed to a humanitarian emergency at the border". Because they aren't and they didn't.

That emergency was caused by the exploitation of loopholes by smugglers and migrants. I detailed those loopholes, and explained how they were a recipe for disaster, 362 days before Chairwoman Lowey made her conclusory statement. It was those loopholes that led to an unprecedented surge of families and children to the border that prior congressional funding did not account for and that Congress refuses to plug. Respectfully, Chairwoman Lowey's statement doesn't even make sense: "Trump's border policies are callous and so hundreds of thousands of migrants are crossing the border illegally." To quote Sen. Cory Booker (D-N.J.) : "You're dipping into the Kool-Aid and you don't even know the flavor." C'mon, man.

Which returns me to Cummings' scolding. Can you imagine? McAleenan had begged Congress on May 30 for money (that it already had withheld for 29 days) to get 2,350 children out of BP stations that could not accommodate them, and then on July 27 he was being yelled at by a powerful member of that same Congress about the conditions of detention for the same class of children in those same stations. Members of Congress always punch down at committee hearings (they sit on a dais for a reason), but that was a punch below the belt, whether Cummings knew it or not. If I were Kevin McAleenan, I would have been a little hot about that. I admire his restraint.

It is no surprise that the president reacted as viscerally as he did. There is no proof that McAleenan, DHS, and BP are not, as the acting secretary stated, "doing our level best in a very challenging situation."

In fact, there is proof to the contrary (and for the reasons for the border surge).

Six members of the GOP Doctors Caucus went to the BP Rio Grande Valley Sector (RGVS) in late June to check out the situation on the ground. As they explained: "As medical providers, we're particularly concerned about migrants' health and any communicable diseases spreading in detention facilities." They observed:

Our Border Patrol personnel are working hard to process and properly care for a significant influx of migrants. Detained migrants nearly tripled in one year in RGVS, from 17,491 apprehensions in May 2018 to nearly 50,000 in May 2019. At one nearby checkpoint, we witnessed two groups of migrants turn themselves in after crossing into America. The migrants approached Border Patrol agents willingly, not fearful, but relieved.

...

When migrants turn themselves into U.S. custody, they're transferred to Border Patrol processing centers where they're given initial medical screenings to check for communicable diseases such as flu, scabies, lice or more severe diseases. After witnessing the enormity of what DHS is dealing with, you can't help but be proud of the work being done to treat people who have put themselves through dangerous circumstances. The medical care is a significant improvement from the start of this crisis and improves every day.

The recent surge of illegal immigration is overwhelming our resources, overcrowding facilities designed for short-term processing. With limited space available in Immigration and Customs Enforcement (ICE) and Health and Human Services (HHS) facilities operating near or over capacity, migrants are waiting longer in Customs and Border Protection processing centers before moving to facilities designed for longer-term stays while waiting for their cases to be adjudicated. Most migrants are able to leave processing facilities within 72 hours, but processing is being delayed for many single adults arriving at the border alone.

Does Cummings think that his colleagues (five physicians and a pharmacist) are lying and covering up abuse? Politicians are covered by speech and debate in their statements, but doctors actually take an oath.

Why are there are custody problems of the border? Congressional Democrats failed to provide sufficient funding, as the six members explain in describing the answer to the problem:

There's an easy solution. We could pass legislation tomorrow to expand the number of ICE and HHS beds available, immediately reducing the number of migrants waiting in processing facilities and ending catch and release; however, Democrats still refuse to take this action.

That funding is exactly what Acting Secretary McAleenan was begging for on May 30, 2019.

As for why the surge is occurring, the six admitted that the funding that Congress ultimately provided (too late — my opinion, not theirs) in June was critical and helpful. As they stated, though, "none of these resources will matter if we do not enforce our immigration laws and keep our country secure," including by closing the Flores loophole that encourages parents to bring a child to the United States to gain quick release, and amending the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which encourages parents from countries other than Mexico and Canada to hire vicious criminal smugglers to bring their children to the United States.

They also asked, and answered, a critical question:

Other members of Congress have recently made disparaging comments after visiting these facilities. How could we come away with starkly different views about the adequacy of migrant care?

The answer is simple. Many of those who criticize our detention facilities aren't seeking to improve treatment conditions — they're seeking to end detentions and promote a policy of open borders. [NB: See Chairman Lowey's statements, above.] On our visit, we saw Border Patrol agents providing quality care to migrants in their custody, including unaccompanied children who survived the dangerous journey from Central America to our border. These law enforcement officers are good people doing a hard job. [Emphasis added.]

It is difficult to argue with that assessment, in light of the disparity between the conditions of detention painted by Chairman Cummings and that those six members (who actually went to the RGVS) describe. Respectfully, given what I know about BP, the six are correct and the one is mistaken.

Returning to Chairman Cummings' vitriolic outburst, there is one point that he makes with which I would take particular issue: "None of us would have our child in that position!" With due respect to the chairman (for whom I do have great respect, having seen him in a professional capacity when I was at House Oversight and Government Reform), for reasons beyond the control of the American people, those are "our child[ren]." His, mine, President Trump's, and every other American's.

Consider the following analogy: You leave your front door unlocked, and someone you don't know leaves a toddler in your entryway, or the kid wanders in there on his or her own. Can you simply put that toddler out the door on the front stoop (as we say in Baltimore), and pretend that child is someone else's responsibility? No, not morally, and likely not legally. You would probably call the police right away, but perhaps you may even take care of the child for a brief period of time, hoping that the parent had an unavoidable emergency prompting him or her to leave the child in your extremely temporary (and involuntary) custody. Until the parent or the cops got there, however, for all intents and purposes, that is your child to care for.

The same is true about the children whom Chairman Cummings excoriates Secretary McAleenan over. For better or worse, those are our children as long as they are in government custody. And I expect my government employees (BP agents, the acting secretary, and every member of Congress and senator) to look after them.

BP has no choice but to provide the best care it can, like the homeowner with the unlocked door. The same is true under agency theory of McAleenan. At the end of the day, however, Congress has to provide the resources for DHS to provide that care. Read my posts from the period between the time the president asked for supplemental funding and the point that Congress finally provided it. I was more diplomatic and less personal than the president was, but I am, and was, every bit as angry about Congress' inaction.

I find it difficult to believe that Chairman Cummings reacted the way that he did for pure political reasons. I have seen his ire up close, and know it when I see it, and as noted I have true respect for him. I really believe that he does not know why conditions were the way they were at the border, or the role that he played in that. Respectfully, though, such unawareness is worse than if he were playing politics.

The most logical conclusion is that those who were in the know in Congress decided to play a game of political chicken with the White House by denying needed funding for custody, and in particular the custody of alien minors. They could trust that the president would get blamed for the resulting conditions, and that the press would ignore his subordinates' entreaties as to the need for that funding, at least for a while.

For proof, look no further than the sagacious analysis by the editorial board of the Baltimore Sun on July 27, 2019. To them, the president's supporters are "white supremacists", so any action that the president takes is automatically not only suspect, but can be assumed to be for some base and racist motive. No logical leap is offered for this analysis: "Mr. Trump sees attacking African American members of Congress as good politics." I am loath to ascribe a base or despicable motive to anyone's action absent proof. To the Baltimore Sun and its ilk in the press, at least as it relates to the current occupant of the White House, such motives are assumed absent strong evidence to the contrary, which it doesn't appear interested in looking for. Who needs proof?

With such a compliant and incurious press, the Democrats in the Congress could get away with this plan. And they still are.

In my next post, I will tie these border issues to the situation in Chairman Cummings' district, and Baltimore as a whole.