Trump Can’t Disown Child-Parent Border Separations – The Atlantic

Good commentary:
Ahead of the Iraq War, Secretary of State Colin Powell warned colleagues about how the U.S. would be forced to spend years fixing Iraq if it invaded, citing what he called the “Pottery Barn Rule”: You break it, you own it.On immigration, something different has happened to President Trump—something more like traditional buyer’s remorse. He aggressively and successively made hardline immigration policy synonymous with himself, but with a growing uproar over the separation of children from parents apprehended crossing the border, he is now wishing to distance himself from the policy.

This is not the first time this has happened. The fight over how to handle “Dreamers,” unauthorized immigrants brought to the U.S. as children, has played out similarly. It’s probably not a coincidence that both of these cases involve children, a peculiar soft spot for an otherwise indifferent president. The problem is that thanks to his eagerness to claim credit for any changes in immigration enforcement, both those he earned and others that preceded him, it is hard for him to create any real separation.

The flareup at hand concerns the handling of families apprehended at the border, and it’s surrounded by a miasma of misinformation. It began in early May, when Attorney General Jeff Sessions traveled to San Diegoto announce a new policy of referring every person caught crossing the border illegally for prosecution. Although illegal entry is, self-evidently, a crime, most first-time offenders are not prosecuted.

One side effect of the policy, as the Department of Homeland Security acknowledged at the time, was that more children would be separated from their parents. Under a 1997 legal agreement, children can’t be held in jail, so if their parents are locked up, the children have to go somewhere else. They’re declared unaccompanied minors, then entrusted to the Department of Health and Human Services, which places them with parents if possible, relatives failing that, or other custodial programs if neither parents nor relatives are available.NBC reported Tuesday that hundreds of children have been held past the legal deadline in facilities that are not equipped for them. News reports have said that the administration “lost” nearly 1,500 who were released, though as The Washington Post explains, that’s a little misleading. It’s more accurate to say HHS lost contact with those children and no longer has custody, not that no one has custody of them. Trump was also happy to point out that photos that showed children in cages at the border were actually from the Obama administration.

Yet in other ways, Trump has tried to soft-pedal the effects of the policy Sessions announced in May, and to distance himself from it. On May 26, he tweeted, “Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border into the U.S.” On Tuesday, he added:

These tweets are misleading. There is no law that requires separation per se; the Flores agreement simply says children can’t be incarcerated, and the Trump administration has made a decision to send all parents apprehended to jail, necessitating separation.

Trump has not mounted any such defense, though. Instead, he has attacked the policy as the fault of his political opponents. He refers to “bad legislation passed by Democrats,” but although the Flores agreement came into effect in 1997, during the presidency of Democrat Bill Clinton, it’s not a law. Another law, the William Wilberforce Trafficking Victims Protection Reauthorization Act, was signed by President George W. Bush and exempts unaccompanied children from speedy deportation to their home country.

Even as Trump tries to distance himself from the policy, Sessions continues to defend it. In an interview Tuesday with the generally pro-Trump pundit Hugh Hewitt, Sessions said, “We believe every person that enters the country illegally like that should be prosecuted.” He said that most of the children are teenagers, not infants, and that “they are maintained in a very safe environment not by the law-enforcement team at Homeland Security, but put with Health and Human Services. And they are kept close by, and if the person pleads guilty, they would be deported promptly, and they can take their children with them.” He also said, “Every time somebody, Hugh, gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children. We don’t want to do this at all.”

Those positions include the prosecution of adults crossing the border, as well as the end of the Deferred Action for Childhood Arrivals program. Trump campaigned on ending DACA, but once it came to actually go forward, he started to get cold feet. Sessions made the announcement, and Trump immediately began imploring Congress to find a way to replace DACA, and suggested that he’d extend the program if they didn’t. Later, he nearly struck a deal with Senate Democrats for a DACA replacement, only to be dissuaded by his chief of staff, John Kelly. He then began blaming the end of DACA on Democrats in Congress, which was as disingenuous as his current claim about family separation. (In any event, court rulings have kept DACA in place for now.)

In both the cases of DACA and family separation, Trump is in a quandary. There isn’t much polling on how the public views the family separations, but it’s reasonable to bet that it isn’t popular—just see how Hewitt reacted. Certainly, DACA was extremely popular, even among Republicans, because children brought to the U.S. by their parents are sympathetic figures. The president also doesn’t want to be seen as a bad guy hurting children, and evinces a genuine, if confusing and inconsistent, tenderness in issues involving kids.

Beyond that, Trump has worked hard to make sure that his political brand is defined by hardline immigration views. It’s an association he cultivated from his campaign launch, with its dark warnings about rapists and criminals coming from Mexico, and running through the “build the wall” chants that were a staple of his rallies. He has been happy to claim credit for any improvements on the border, including boasting of a drop in border crossings. It’s a real drop, though it’s also the continuation of a trend that predates his presidency. He also continues to falsely claim that his wall is under construction, even though Congress specifically barred it. As a result, Trump will have a hard time convincing anyone that it’s actually the Democrats who are hard on immigrants.

Over the weekend, Oregon Senator Jeff Merkley, a Democrat, went to visit a detention center for immigrant children near the Mexican border in Texas. Saying he wanted to check on conditions there, he asked for a tour, but the contractor who runs the facility instead called the police on him. A staffer livestreamed the whole thing. The White House complained that Merkley was engaging in “political grandstanding,” which isn’t wrong, but Trump, who understands the value of a good grandstand, must have had at least a grudging admiration: The stunt was reminiscent of then-candidate Trump’s visit to the border in July 2015.

Merkley’s visit helped to underscore the division between Democrats and the Trump administration on immigration, and shows why it’s hard for Trump to disown the current controversy. The president wanted to be seen as a hardliner on border issues, and he succeeded, but sometimes it’s wise to be careful what one campaigns for.

via Trump Can’t Disown Child-Parent Border Separations – The Atlantic

Flag Burning and Terrorism: The Republican Vogue for Stripping Citizenship – The Atlantic

Good piece by David Graham of The Atlantic on one of the Republican obsessions.
And an obsession, of course, that the Conservative government pursued with respect to citizenship revocation for terror or treason (in the process of repeal by the current government) and birthright citizenship, where they tried to end the practice but gave up provincial opposition due to the high cost compared to the small numbers involved:

Depriving someone of their citizenship is one of the harshest sanctions a government can levy—not as lastingly grave as execution or life imprisonment, perhaps, but still very serious, especially for someone who is not a dual citizen and would therefore be left stateless. (It’s a situation that Edward Everett Hale dramatized in his famous short story “The Man Without a Country,” published in The Atlantic in December 1863.)

Yet recent years have seen a vogue among Republicans for proposing to strip citizenship as a punishment for various crimes. In 2014, Senator Ted Cruz, a Trump frenemy-turned-enemy-turned-supporter-turned-rumored-appointee, proposed stripping citizenship from any American, native-born or naturalized, who declared allegiance to a foreign terrorist organization, became a member of such an organization, or provided training or material assistance. Senator Rand Paul floated a similar proposal around the same time. Earlier this year, Newt Gingrich, a close Trump adviser, called for stripping citizenship from and deporting any Muslim who believes in sharia law, a proposal that is impractical, nonsensical, and virtually guaranteed to be unconstitutional. Somewhat more perplexingly, Ben Carson called in a 2014 column for non-citizens who vote fraudulently to be stripped of the citizenship they don’t possess.

 A different but related current is the occasional call, usually from Republicans, for an end to birthright citizenship, which grants American citizenship to anyone born in the United States—most notably to the children of immigrants, whether authorized or not. Ending birthright citizenship was one of the earliest policies that Trump rolled out in the summer of 2015, saying, “This remains the biggest magnet for illegal immigration.” Several of his rivals for the Republican nomination announced that they agreed with him.The frequent proposals from conservatives and Republicans to strip citizenship as a punishment for a range of crimes—or in the case of birthright citizenship, for the crimes of one’s parents—illustrates a partisan difference in how citizenship is viewed. Progressives tend to think about citizenship as a right that, if acquired legally, cannot be taken away, even for heinous crimes. It is nearly absolute. Conservatives, however, tend to view it as a privilege, and while it might be the default, it can still be withdrawn, as in the case of Americans who join terrorist groups. The right tends to view the left’s version as insufficiently patriotic, but it’s simply a different view of patriotism, and perhaps one that is more constitutionally grounded.

(In a separate and controversial move, President Obama decided he could kill American citizens fighting for terrorist groups overseas, such as the radical cleric Anwar al-Awlaki, without trial—thus depriving Awlaki of another of his rights—a decision that was decried by civil libertarians.)

Birthright citizenship is one of those areas in which the United States is unusual—even exceptional. Just 33 countries around the world offer it. The legal matter has been more or less settled since 1898, when the Supreme Court ruled that children of foreigners who are born in the United States are, according to the 14th Amendment, citizens, though some scholars have argued that does not cover unauthorized immigrants.Stripping citizenship is another area in which the United States has taken an exceptional stance. Governments from oppressive Middle Eastern police states to Western European countries have used the tactic as a punishment for various crimes. Libertarian journalist Matt Welch suggested in late 2015 that there’s a global trend toward it. In 2014, the United Kingdom established the maneuver for terror suspects, and Australia did the same a year later. French President Francois Hollande this year dropped a similar proposal, brought up after terror attacks in 2015, in the face of opposition.

Doing the same in the United States would likely be impossible. The Supreme Court ruled in Afroyim v. Rusk in 1967 that American citizens could not be stripped of their citizenship involuntarily. Wikipedia has a useful though incomplete list of those who have had their citizenship stripped. Generally, those cases in recent decades fall into a three clear, sometimes overlapping, groups: spies, former Nazis, and those who acquired their citizenship fraudulently, i.e., by lying during the naturalization process. Even Emma Goldman, the famed anarchist leader, was stripped of her citizenship not explicitly for being an anarchist, but on a technicality: She had obtained citizenship through marriage to a man who was a naturalized citizen, and the government determined that the ex-husband had fraudulently obtained his citizenship, thus invalidating hers as well.

Throughout the 1950s, as Atossa Araxia Abrahamian wrote in Dissent in 2013, there were plenty of cases of Americans, both naturalized and native-born, who were stripped of their citizenship for having various foreign ties. But the Supreme Court eventually stamped that practice out in Afroyim. Some conservative legal scholars have argued for a new legal regime in which citizenship could be stripped in certain circumstances. Richard Epstein, a law professor at the University of Chicago, frames the conservative case for citizenship as a privilege this way:

“Think of the United States as a quasi-partnership, which has to set its rules for the admission and exclusion of its member citizens. I know of no private association that states that an individual can lose his place in the firm only if he voluntarily resigns. Virtually every well-drafted agreement understands that these relationships depend upon trust, and thus allows a forcible removal for cause.”

Epstein reasons, “The same for-cause rule applies to common carriers who have to take all customers on reasonable and nondiscriminatory terms. Even they can exclude rowdy or drunken individuals.” Whether something as fundamental as citizenship should be treated similarly to the right of an unruly, besotted patron to get one more nightcap is a matter on which people are likely to disagree.

In any case, adopting Epstein’s point of view would require a Supreme Court decision overruling the Afroyim precedent and returning the United States to the system more as it was in the 1950s and 1960s. Trump is likely to have a chance to make some at least one Supreme Court appointment; perhaps this is the America to which his campaign slogan suggested returning.

Source: Flag Burning and Terrorism: The Republican Vogue for Stripping Citizenship – The Atlantic