America’s Zero-Tolerance Immigration Policy and the Fallacy of the Rule of Law
In the past week, people from all sectors of society, including local religious leaders and even United Nations officials, have expressed outrage over the separation of children from their parents as families attempt to enter the United States along its southern border. Indeed, there is much over which to be outraged. Between October 1st, 2017 and May 31st, 2018, at least 2,700 children have been split from their parents, with 74% of those children being separated in the six weeks between April 18th and May 31st. While their parents face criminal prosecution for attempting to illegally enter the United States, these children are labeled “unaccompanied minors” — the same governmental designation they would receive had they traveled to the U.S. border completely alone — and their custody is transferred to the Department of Health and Human Services (HHS). What occurs after separation is perhaps even more jarring, as children are then relocated to massive detention centers. One such detention center, an old warehouse in McAllen, Texas, houses upwards of 1,000 children who are separated from one another by chain-link fences and includes at least one cage that holds up to 20 children at a time.
Such reports, including recently released audio recordings of immigrant minors wailing in detention centers, have prompted many to openly question how such a draconian policy could possibly be carried out here in America. A former CIA-director even likened the separation of families at the southern border to the Nazis. How, then, has the Trump administration and all of its related agencies, including the Department of Homeland Security and the Department of Justice, responded to these questions? Simple: officials have masqueraded these separations under the guise of enforceable legality, and by stressing a steadfast commitment to the rule of law.
Time and again, officials close to President Trump have described the practice of family separation at the border as a consequence of dutiful law enforcement. In an address from May 7th, Attorney General Jeff Sessions announced a “zero-tolerance policy” on illegal immigration in which any person attempting to cross the border illegally will be immediately referred to the Department of Justice to face prosecution for the misdemeanor of illegal entry. In his announcement, Sessions explicitly described the process of separating children from their parents as being both explainable and justifiable according to existing law: “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.” Here, as Sessions describes the separation of families at the border to be justifiable policy because it is legal, he is implicitly constructing an inextricable connection between legality and justice. This position, and the emphasis placed on the rule of law, was echoed strongly by Kirstjen Nielsen. As the current Secretary of the Department of Homeland Security, Nielsen is the primary government official charged with enforcing the immigration policy of family separation. While speaking to the National Sheriffs’ Association earlier this week, Nielsen was resolute: “We [the Department of Homeland Security] will not apologize for the job we do or for the job law enforcement does for doing the job that the American people expect us to do.”
Perhaps there are aspects of this family separation policy that are actually legal. While it is not explicitly posited within Sessions’ zero-tolerance vision for immigration, family separation appears an expected and calculated consequence. Under the immigration policy of the current administration, any person attempting to enter the United States illegally must be detained and criminally prosecuted. Therein lies the “zero-tolerance” component of Sessions’ declaration. If that person happens to be a parent and attempts to enter the country with a minor, separation is all but guaranteed: “Filing criminal charges and transferring [parents] to the custody of the US Marshals Service requires children to be separated and sent into HHS custody.” That’s it. That’s the law. If an immigrant is arrested while traveling with a child, that child legally cannot remain with the parent in the criminal court system. Considering all of this, the explanation put forward by Trump-affiliated officials — that this policy is nothing more than law enforcement and adherence to the rule of law — seems surprisingly accurate.
But, being legal does not make it just. In fact, this position put forward by Sessions — that a law is just and worthy of respect and enforcement because it’s a law — is actually a logical fallacy. Laws are not static, God-given abstractions. Rather, the law is constructed by people (usually men) with complex emotions, internal biases, and convoluted motivations — all of these forces can implicate the creation and implementation of public policy. Indeed, examples of historical injustices — such as Jim Crow or South African apartheid — were first and foremost legal systems, stifling webs of discriminatory public policy that used the law as a way to relegate a racial group to social, economic, and political inferiority. In fact, the first thing that authoritarian regimes seem to do when they come to power is to concretize prejudice into the law itself. Thus, an unjust idea or proposal is no less immoral once it becomes a law. In the case of Sessions and Nielsen, arguing that the rule of law must be unquestioningly affirmed and enforced actually provides an incredibly convenient justification for otherwise unconscionable immigration policy.
As a result, both Sessions and Nielsen, with their strict, uncompromising adoration of law enforcement and the rule of law, fall morally flat. The solution to legislation that is failing, or that is unjust, is not to blindly enforce it because it’s the law. Doing so only guarantees a continuation of the status quo, a continuation of the injustice incurred by the law itself. Adherence to the rule of law, while important for democratic functioning, must not be used as an excuse to ignore the humanitarian consequences of public policy. Unjust laws must be challenged, repealed, and replaced, and certainly must not be elevated to an untouchable and morally-neutral pedestal simply because they are already laws.
In simpler terms, Sessions and Nielsen are prioritizing form over content. Rather than reckon with the draconian language of the law or its adverse consequences, both Sessions and Nielsen have instead chosen to blindly follow and enforce the law simply because of its status as law. In response, the public must demand that the form and content of laws be merged; we, as a society, should strive to create and enforce just law, not just law in and of itself. Laws are, after all, subject to the whims and prejudices of men. Justice, however, is not.
