On Sunday, immigrants and their supporters rallied at Phoenix's Central United Methodist Church against the Trump administration's policy of criminal prosecution of border-crossers and the resulting separation of thousands of children from their families. Instead of concessions from the administration, though, they got the dispatch of Wisconsin National Guard troops to bolster Customs and Border Patrol agents.
Good for the protesters. But they might be well-advised to redirect at least some of their efforts away from demonstrations and instead put resources into more effectively and humanely smuggling migrants into the country past the border checkpoints.
The treatment of the migrants, which has involved the confinement of children in sparse, chain-link enclosures (appropriately dubbed "cages" in some circles), is seen by critics as a cruel bit of political arm-twisting on the part of the administration. Trump and company mean to extract a harder-line immigration policy from lawmakers as the price of ending the prosecutions and separations. As the Los Angeles Times asks in an editorial, "What's next, holding a gun to their heads and saying, 'Don't make me shoot'?"
Please, don't give the politicians ideas.
Americans, by and large, don't like the sight of sobbing children dragged away from their parents. "American voters oppose 66–27 percent the policy of separating children and parents when families illegally cross the border into America," a Quinnipiac poll (PDF) released yesterday reports. But much of that 27 percent consists of the president's increasingly nativist Republican base. Voters may well punish the GOP at the ballot box for its current leader's conduct in November and in 2020, but what does Trump care? Having first supported the Queens Democratic machine, and later the post–Ross Perot Reform Party, Trump has never demonstrated loyalty to anything or anybody beyond the boundaries of his own ego (though he certainly demands it of others).
To the extent that the hardline 27 percent has a rationale for its support of separating migrant families beyond raw nativism, it's based on scare stories about gangsters using children as beards to gain access to the United States.
"In the first five months of fiscal year '18, CBP saw a 315 percent increase in individuals using children to pose as family units to gain entry into the country compared to fiscal year '17. Smugglers and drug traffickers know the loopholes well, and they know that if they reach our borders, they will be released into our country and evade the consequences of their criminal action," the Department of Homeland Security's Jonathan Hoffman told reporters last month.
Well…OK. Technically, an increase from 46 bogus families to 191 bogus families does constitute more than a quadrupling of such incidents. But those 191 rent-a-families get lost in the wash of people intercepted by U.S. officials. "Even given the increased number of alleged smugglers this fiscal year and the decreased number of family units, those smugglers, those traffickers, those MS-13 members make up only 0.61 percent of the total number of family units apprehended at the border," notes the Washington Post's Philip Bump.
Which is to say, it's not junior sicarios populating those chain-link enclosures (though that would make for a movie I'd definitely pay to watch).
Republicans in Congress and around the country seem to be balking at the administration's border policy—whether out of principle or out of fear for their political careers doesn't really matter. But they still have to consider a nativist party base that might well cut them off at the knees for opposing Trump before general election voters ever have a crack at them. That leaves a legislative resolution to the cruel border policy a very uncertain thing—even before we consider the likelihood of a presidential veto.
Not that the folks who rallied at the Central United Methodist Church and their counterparts across the country shouldn't continue to try to change hearts and minds—and policy. Legal reform is the only way to guarantee some degree of decent treatment for migrant families that isn't subject to prosecutorial discretion or some other flavor of official whim. Exchanging criminal prosecutions for civil proceedings (an approach often favored in the past) would be a good first step.
"The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both," wrote George Mason University's Ilya Somin at The Volokh Conspiracy, which is hosted at Reason. "Until the administration's recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations."
Making it easier for migrants to enter—and leave—the country at will, to seek work and return to their homes and families as they often have in the past, would be a better step still. Historically, fewer people bothered to uproot their loved ones when they could easily cross the border back and forth.
But that looks like a distant hope, right now. We should work for it, sure, but we should also consider approaches that don't require legislative changes and majority approval Those changes would include better means for getting migrants across the border and past the watchful eyes of Border Patrol, National Guard, and nativists. Immigrants and their supporters should give some thought, and effort, to improved smuggling channels that treat migrants better than the existing criminal networks, and offer them a better chance of success.
That's a step beyond the "sanctuary city" declarations of refuge for migrants that already has the Trump administration fulminating. But so what? If hardline federal policy is worth undermining, it's worth sabotaging in a host of ways. And an underground railroad for migrants would do just that by harnessing the ingenuity and resources of private groups and public officials that already oppose the current administration to more directly confront its policies.
Improving smuggling efforts is a less ideal solution than getting officialdom off migrants' backs, but it's better than just watching kids get torn from their families. And the way things are going in this country, we may someday need access to reasonably humane smuggling channels to get ourselves across the border in reverse.