Zero Tolerance Is Dead at the Border

President Trump’s “zero tolerance” policy at the border is effectively dead unless Congress intervenes.

Top officials at the Department of Homeland Security confirmed last week they will pivot back to the Obama-era policy of “catch and release,” where illegal border crossers are arrested, and then released into the United States to await trial.

How did the pendulum swing so quickly from zero tolerance to baseline efforts at enforcement? In attempting fully to apply the law to illegal crossers, the Trump Administration ran smack into two of the thorniest challenges that plague immigration enforcement across the country: resources and complicating legal issues.

The federal government simply does not have enough beds to incarcerate so many illegal aliens, which has averaged 39,322 people a day this fiscal year. DHS confirms it has three “family residential centers” with room for about 3,000 adults and children, which are nearly full. Officials at the Department of Health and Human Services have reportedly asked the Pentagon to provide overflow housing on military bases, reminiscent of a similar Obama Administration request in 2014.

Moreover, due to a long running legal settlement, the federal government is restricted in how long it may detain migrant children. If families are to be kept together, as Trump’s latest executive order dictates, current law says families cannot be held together longer than 20 days.

All of this has placed unsustainable pressure on limited resources. White House Press Secretary Sarah Huckabee Sanders told the press corps on Tuesday, “We’re going to run out of space, we’re going to run out of resources to keep people together.”

As a result, border patrol agents simply have stopped referring adult immigrants who cross the southern border illegally for criminal prosecution. Kevin McAleenan, the head of U.S. Customs and Border Protection (USCBP), directed his staff to halt referrals because Trump has barred the separation of families. Prosecutions for illegal border crossers cannot occur unless Border Patrol agents refer cases for that purpose.

U.S. attorneys across the border are suspending prosecutions of misdemeanor and felony illegal entry cases involving people apprehended with children. As was the case for a group of 17 migrants in McAllen, Texas, prosecutors are simply dropping charges.

The head of the National Border Patrol Council summed up the problem frankly:

We’re going to have to release [families] under what’s called the catch-and-release program. It’s impossible to not separate the family unless the catch-and-release policy takes hold again. If we can’t hold the children more than 20 days, therefore we can’t hold the parents more than 20 days. It takes about six to nine months to see a deportation proceeding from the beginning to the end.

“No One Is Afraid of the Law”

The problems with returning to a catch-and-release policy (or, as border  agents derisively call it, “catch and run”) are obvious. During the 2016 campaign, President Trump ran against most of them. Most obviously, catch-and-release results in even more illegal immigration. In testimony before the Senate, one border patrol agent described the policy this way:

If you are an unaccompanied minor, we will not only release you, but will escort you to your final destination. If you are a family unit, we will release you. If you claim credible fear, we will release you. If you are a single male and we do not physically see you cross the border and you claim that you have been in this country since 2014, we will release you. Do you have to offer any proof that you have been here the last two years—absolutely not. We will take your word for it.

Illegal immigrants who are apprehended are given a “notice to appear” in court months later. Many do not. A report by a former federal immigration judge found that of the 2.5 million aliens released from detention into the country over the past 20 years, an average of 46,000 failed to appear in court each year. A recent Government Accountability Office (GAO) report found 38 percent of aliens apprehended by the Border Patrol in 2014 and 2015 were likely still living in the United States as of May 2016.

It goes without saying that such policies only increase illegal crossings. As the president of the National Border Patrol Council put it in testimony before the House of Representatives, “individuals entering the U.S. illegally know they will be released if apprehended. The result is no one is afraid of the law.”

Trump is Taking the Heat for Congressional Failure

In attempting full enforcement of U.S. law at the border, the Trump Administration has ended up back at square one, running full force into a brick wall of Congress’ making. The law restricting child detention to no more than 20 days effectively means families cannot be held during the length of their prosecution. Likewise, even if the law was changed, the executive agencies lack the resources to house sufficiently the thousands of illegal crossers.

Both of these issues are squarely within congressional purview. Trump can’t change the law. Only Congress can. Likewise, even with plenty of money in other accounts, the Anti-Deficiency Act prevents executive agencies from spending more than what Congress designates on particular activities. And, as Sanders confirmed earlier this week, the agencies are getting very close to running out of money.

Yet, Congress continues to pluck at Nero’s fiddle, deliberately ignoring that Rome is in flames. On Thursday, both houses adjourned for a week of recess—the House doing so after considering a failed amnesty vote for 2 million illegal immigrants.

What’s more, Senate Democrats have ignored or outright blocked proposals to provide resources and legal clarity at the border. As Senate Minority Leader Chuck Schumer (D-N.Y.) said on the Senate floor the other day, Democrats would rather “keep the focus on Trump” than actually solve any problems.

Indeed, the Democrats’ proposed “solution” is laughable. Senator Dianne Feinstein (D-Calif.), along with every Democrat senator, has signed onto the Keep Families Together Act, a bill drafted so sloppily that it doesn’t even distinguish between migrant children at the border and U.S. citizen children already in the country.

On this issue Democrats have painted themselves into a corner and Republicans would be wise to take advantage of it. Recent polling suggests that while voters are unhappy with family separation, nearly half agree the whole family should be returned to their home country. Only 19 percent support the “catch-and-release” policies the Democrats are pushing, while 46 percent support Trump’s zero-tolerance policy of arresting and prosecuting anyone who crosses the border illegally.

Rather than contorting themselves to support amnesty, Republicans would do well to act quickly to provide the legal clarity and the resources so desperately needed at the border. Voters don’t support catch-and-release regardless of whose policy it is, Obama’s or Trump’s.

If the Republican congressional majorities force the administration into a catch-and-release posture by failing to do their jobs, the consequences will be severe. Not just for the president, but for congressional majorities as well.

Photo credit:  Spencer Platt/Getty Images

About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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