On Monday, February 22, the Senate Judiciary Committee held a confirmation hearing for Merrick Garland, the Biden administration's nominee to serve as attorney general. While senators pressed Garland on a broad array of issues that fall under the Department of Justice's responsibility, his responses on immigration questions were disjointed and suggest an absence of meaningful knowledge of U.S. immigration law.
Judiciary Chairman Dick Durbin (D-Ill.) used part of his time focusing on the Trump administration's "zero tolerance" policy, which was announced by former Attorney General Jeff Sessions in April 2018. Under the "zero tolerance" policy, all U.S. attorney's offices along the Southwest border were directed to prosecute all Department of Homeland Security referrals of section 1325(a) of the United States Code. That section of immigration law prohibits both attempted illegal entry and illegal entry into the United States by an alien. In applying this policy, adult aliens were referred for prosecution while any minor aliens who they arrived at the border with were put in the custody of the Department of Health and Human Services. Critics derided this as "family separation" and the "zero tolerance" policy was short-lived. Chairman Durbin's question was specifically about conducting oversight into the origin and application of the "zero tolerance" policy, in response to which Garland affirmed his commitment to oversight. Then, unprompted, Garland added, "I think that the policy was shameful. I can't imagine anything worse than tearing parents from their children, and we will provide all the cooperation that we possibly can."
Whether or not you agree with Garland's characterization of the "zero tolerance" policy, at this point in the hearing you likely had the impression that Garland had put much thought and study into immigration law. That impression would prove to be short-lived. When Senator Josh Hawley (R-Mo.) had his turn, he asked Garland whether unlawful entry into the United States should remain a crime. Remarkably, Garland replied, "I haven't thought about that question. I just haven't thought about that question." He continued, "I think the president has made clear that we are a country with borders and with a concern about national security. I don't know if a proposal to decriminalize but still make it unlawful to re-enter. I just don't know the answer to that question. I haven't thought about it."
Garland's lack of "thinking" on the straightforward question posed by Senator Hawley is curious in light of his response to Chairman Durbin. Both questions referenced section 1325(a), though neither senator explicitly cited the statutory provision. Garland goes out of his way to give his thoughts on "zero tolerance" yet apparently has not bothered to form a view on whether or not illegal entrants should continue to be subject to a possible term of imprisonment of six months for a first offense and up to two years for repeat border offenders.
While the Homeland Security Act, which created the Department of Homeland Security, vested much immigration authority to the DHS secretary, the attorney general remains the final arbiter of unresolved immigration issues. Garland's contradictory responses do not instill confidence that he knows immigration law or that he will enforce the law. This is particularly troublesome to adherents of the rule of law because Garland's confirmation is all but assured.