Irresponsible Rhetoric on the Border Disaster

With almost 500 days left before the 2020 elections, politicos are ramping up their rhetoric. Rhetoric is fine in general; however, it is irresponsible when individuals in positions of power use it to poison a critical debate. That's what is going on right now.

Let's start with Democratic presidential candidate and South Bend, Ind., Mayor Pete Buttigieg, who told "Axios on HBO" that he "wouldn't put it past" President Trump to allow the border "to become worse in order to have it be a more divisive issue, so that he could benefit politically." Specifically, he said: "The president needs this crisis to get worse, even though it makes a liar out of him. ... I don't think he's worried about that. ... I don't think he cares if it gets better. But he certainly doesn't benefit from comprehensively fixing the problem."

I "wouldn't put it past" a presidential candidate who is currently polling at an average of 7.0 percent according to Real Clear Politics to make ridiculous or outlandish comments in order to get his name in the press, but at least mine is a reasonable statement. Buttigieg's comments, on the other hand, (1) don't make sense; and (2) are belied by the president's recent actions.

Let's start with the "don't make sense" part. The president made controlling immigration a key point in his initial presidential platform, and it was probably the single most important issue that got him elected. Democrats know this, which is why they block even reasonable legislation that would assist the executive branch in controlling the unfolding humanitarian and national-security crisis at the border.

Imagine for a moment that the president had run on a policy of providing hot soup to orphans, and that the president's "hot soup" plan really ginned up his base and turned his voters out to the polls. Such proposals generally received bipartisan support, but imagine that the opposing party (still upset over the president's election) blocked all funding for hot soup. They could come up with reasons for such opposition (hot soup is costly, or there are contrary arguments as to its nutritional value, or focusing solely on orphans ignores the fact that there are others who would benefit from hot soup who are not included in the president's plan), and block that legislation.

There may be some "hot soup" constituency out there who demands hot soup or nothing, and who views the opposing party's obstinate position as further proof that they are unfit to govern. Most voters, however, expect candidates to deliver on reasonable promises, and will question whether they should continue to support a candidate who fails to fulfill those promises, regardless of the reason. This would especially be true if the orphan-nutrition problem became increasingly worse. Some might even view the president's own rhetoric on the issue as counterproductive, and seek a different candidate with similar views who would be "less toxic" in their minds on the issue.

Statistics from U.S. Customs and Border Protection (CBP) are clear on how much worse the situation at the border has become during Donald Trump's presidency. In April 2017, the number of aliens who were apprehended or who were deemed inadmissible along the Southwest border was 15,798, whereas in May 2019, it was 144,278, a 913 percent increase.

Is that increase the president's fault? My answer would be "no", but I'm also (modestly) an expert in the field who has tracked the problem from the beginning. Voters are fickle and impatient, but most importantly don't focus on one issue constantly and are likely to miss the nuances. Generally, one-subject interest groups benefit from the failure to solve the issue on which they are focused (it keeps the issue going leading to more contributions), but not presidential candidates.

As for the president's actions, they demonstrate that he has pulled out all the stops to address the border disaster. Endanger economic growth by threatening tariffs with Mexico if they fail to do their part to stop migrants in coming to the United States? Done. Work with the Guatemalan government to secure their northern border? In the pipeline. This latter effort is all the more impressive given the fact that just a year ago Guatemala's government was seeking Temporary Protected Status (TPS) for its nationals in the United States.

Of course, all of these efforts are necessary because of the obstinacy that the president faces from his political foes in Congress. In essence, he's had to ask foreign governments to do what Congress won't: Act to secure the border. Buttgieg's comments suggest the Democrats are concerned that their inaction as the border crisis has grown worse, and their long-time denial that there is a border crisis at all will cost them in the upcoming presidential election. He is attempting to deflect blame for that crisis to the Trump administration, despite the administration's exceptional border efforts. That's called "projection" in the world of psychology.

The irresponsibility of Buttgieg's comments pale in comparison, however, to those of Rep. Alexandria Ocasio-Cortez (AOC). She has said on Twitter:

I would pass this off as trolling if she weren't so serious, and if this rhetoric did not have such a corrosive effect on the body politic. And, to avoid poisoning the political discourse further, I will avoid bombast to sanctimoniously state the inaptness of the analogy. Dachau, Mauthausen, Sachsenhausen, Stutthof, Auschwitz I, Ravensbrück, Lublin/Majdanek and others speak for themselves. So do the gulags. And the Japanese-American internment camps approved in Korematsu, a decision the Supreme Court finally disavowed last year.

First, as my colleague Dan Cadman has previously explained, "detention in the immigration context is not as it is in the criminal justice world, which is to say punitive and often long-term; rather, it is for the sole purpose of temporarily holding individuals until they are removed." He was channeling the Supreme Court, which in Wong Wing v. United States, 163 U.S. 228, 235 (1896), explained:

We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person is wrongfully accused, but it is not imprisonment in a legal sense. [Emphasis added.]

As the highlighted portion indicates, the Supreme Court recognized the justification for immigration detention 113 years ago, but some members of Congress have not clued into the facts yet.

Second, unlike in Korematsu, the population that is being detained at the border is not being taken from within the interior the United States and moved somewhere else (the context in that case, Americans of Japanese descent were uprooted from their homes and placed in remote camps); they are in detention for the very reason that they were apprehended seeking to enter the United States illegally, or without proper documents, and subsequently voluntarily refuse to leave.

Consider the article from Esquire (a men's fashion magazine), to which AOC looks for support for her contentions:

"What's required is a little bit of demystification of it," says Waitman Wade Beorn, a Holocaust and genocide studies historian and a lecturer at the University of Virginia. "Things can be concentration camps without being Dachau or Auschwitz. Concentration camps in general have always been designed — at the most basic level — to separate one group of people from another group. Usually, because the majority group, or the creators of the camp, deem the people they're putting in it to be dangerous or undesirable in some way." [Emphasis added.]

In the context of immigration detention at the border, one group of individuals is not being separated from another group; rather, they were never a part of that second group at all.

My last point above about "refus[ing] to leave" is particularly crucial to analyzing AOC's statement. Aliens who are in immigration detention "hold the keys to their confinement". They can always ask to return home, or to the country from which they entered the United States, or any other country that will take them. There are confined because they won't do so, but rather demand hearings on their ability to remain in the United States.

As the Supreme Court noted in Trump v. Hawaii with respect to Korematsu: "The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority." Immigration detention, on the other hand, is not only within the scope of presidential authority, but it is critical for to the president's ability to enforce the immigration laws of the United States, in two separate ways.

First, as the Court recognized in Wong Wing, detention is key to ensuring that aliens appear for removal proceedings and, if ordered removed, are removed.

Second, in the border context to which AOC is apparently referring, detention enables the government to vet individuals who have arrived in the United States without any prior processing, unlike aliens who enter lawfully and have already been screened. Has an alien committed a crime abroad, or does the alien pose a danger to the national security or have a communicable disease? Detention is necessary to answer these questions before the alien can be released into the community.

The need for detention for processing purposes is especially true in the case of unaccompanied alien children (UACs) who have arrived illegally. By law, the Department of Homeland Security (DHS) is required to turn all of those UACs from non-contiguous countries (that is every country other than Canada and Mexico) over to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) within 48 hours of the point at which they were identified as UACs, for prompt placement in the least restrictive setting "that is in the best interest of the child". As I have noted previously, in FY 2018, the average UAC spent 60 days in an ORR shelter before being released.

As acting DHS Secretary Kevin McAleenan stated in a May 30, 2019, press call:

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 is out of bed space and Congress has failed to act on the administration's emergency supplemental request for more than four weeks.

This is a significant point that AOC does not reference. By law (which originated with House Democrats), the placement of those children cannot occur until they go into the custody of HHS. Proper placement of UACs is critical to the well-being and safety of those UACs. As the Congressional Research Service has observed:

In making these placement determinations, ORR conducts a background investigation to ensure the identity of the adult assuming legal guardianship for the UAC and that the adult does not have a record of abusive behavior. ORR may consult with the consulate of the UAC's country of origin as well as interview the UAC to ensure he or she also agrees with the proposed placement. If such background checks reveal evidence of actual or potential abuse or trafficking, ORR may require a home study as an additional precaution. In addition, the parent or guardian is required to complete a Parent Reunification Packet to attest that they agree to take responsibility for the UAC and provide him/her with proper care.

The logical alternative implicitly proposed by AOC is that those UACs not be detained at all, which would eliminate the government's ability to vet potential sponsors. If UACs were not detained, therefore, they would face the significant risk of being subject to exploitation and abuse, if not outright trafficking.

And, because representatives like AOC have failed to act in a timely manner to provide HHS the funds to shelter UACs, those UACs must languish in the custody of CBP that she herself decries. Somehow, this crucial point gets lost in the discussion. In fact, it was only on June 19, 2019, that the Senate Appropriations Committee advanced legislation to the full Senate that would provide $2.88 billion for the UAC program. That was seven weeks after the president requested that funding, and the legislation still needs to pass both houses of Congress before such funding becomes available.

In summary, immigration detention facilities are no more concentration camps than the corner drug dealer is a pharmacist. To suggest otherwise is ridiculous — no matter how many men's fashion magazines one cites to the contrary.