Tragic Compassion

The Department of Homeland Security estimates that 90,000 unaccompanied minors will be apprehended attempting to enter the United States this year, up from 40,000 last year. DHS expects the number to grow to more than 140,000 next year. Ranging in age from six to seventeen, many of these minors travel more than 1700 treacherous miles from Honduras across Guatemala and Mexico.

Overwhelming immigration authorities, many unauthorized entrants are released into the United States on the promise to report to immigration authorities, although federal authorities lack the will and the resources to ensure follow through. Others are being or will be housed on military bases in California, Oklahoma, and Texas. At least in the short term, there are concerns about adequate housing, health care, education, sanitation, food, and supervision as detention facilities attempt to cope with the influx.

Misguided compassion led directly to this tragedy. How did we get here?

In 1986, a Democratic Congress passed and the Republican president signed into law the Immigration Reform and Control Act, which attempted to close the back door of illegal immigration by, among other measures, imposing sanctions on employers for hiring unauthorized aliens. With the prospect of ending illegal immigration, the Act also provided a path to amnesty and future citizenship to many of the four million persons then living in the United States without permission. Fr. Theodore Hesburgh, then President of the University of Notre Dame and Chair of the Select Commission on Immigration and Refugee Policy, testified before Congress that the Select Commission’s recommendation favoring amnesty was predicated “on one condition: that somehow the sieve that we call a border could be tightened up, that somehow we would bring our illegal immigration under control.”

The United States has failed spectacularly in its attempts to stem the tide of unauthorized immigration. By the mid-2000’s, the unauthorized alien population residing in the United States exceeded 11 million. Wage and living condition disparity between sending countries and the United States provided the major impetus for emigration.

In response, the United States government sent would-be unauthorized immigrants mixed messages. Officially, the U.S. said migrants were not welcome unless they arrived through authorized channels. Unofficially, however, unauthorized migrants found employers willing to turn a blind eye to their employees’ immigration status and a government lacking the resources and the will to rigorously enforce immigration labor laws.

From 1997 to 2004, the number of hours spent by federal officials investigating employers’ use of unauthorized labor fell eighty-one percent from 714,000 hours to 135,000. The number of notices of intent to fine employers for immigration violations fell from 1461 in 1992 to three in 2004, a drop of 99 percent. The number of arrests of illegal alien employees fell from 17,552 in 1997 to 445 in 2003, a drop of 97 percent. Desperate noncitizens took notice, entering the United States illegally at the rate of 500,000 a year just prior to the recession.

Presidents Bush and Obama favored comprehensive immigration reform, which would once again attempt to control the border and illegal entry and grant some form of amnesty to many of the undocumented. I favored—and still favor—such a comprehensive approach with the same condition attached by Fr. Hesburgh, namely, that we “bring our illegal immigration under control.” Congress, on the other hand, remained—and remains—reasonably skeptical, doubting that the border can or will really be tightened and illegal immigration brought under control.

This brings us to the current crisis.

Frustrated by congressional resistance to comprehensive immigration reform, President Obama took matters into his own hands. A year into his presidency, his administration started planning to bypass Congress and adopt immigration reform by executive action.

In 2011, President Obama announced that “for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States.” Lacking the resources to remove every deportable non-citizen, Homeland Security—like all law enforcement agencies—must necessarily exercise discretion. And, it makes sense to direct resources toward the greatest perceived threats to public safety. By publicizing its prosecutorial priorities, however, the president sent a powerful signal to current and prospective unauthorized immigrants that they have little or nothing to fear from the federal government as long as they steer clear of the criminal justice system. In fact, the announcement was accompanied by the further statement that lower priority cases would be kept out of the deportation pipeline altogether.

In 2012 (renewed again in 2014), the administration adopted what it calls Deferred Action for Childhood Arrivals (DACA), providing a process by which young persons who were brought to the United States illegally by their parents can apply to stay and work in the United States. The president took this action after Congress failed to pass the DREAM Act, which would have provided relief to these persons through law. Although I support the DREAM Act for reasons stated in a 2010 op-ed, DACA is neither prudent nor lawful.

The administration attempts to justify DACA as a lawful exercise of prosecutorial discretion. This claim fails the smell test. Prosecutorial discretion serves to direct resources toward higher priority targets. It is not meant as a way for the executive to undermine the law, no matter how misguided the law might be. A local District Attorney might prioritize prosecuting drunk drivers over jaywalkers. The District Attorney, however, would never expend resources in the name of “prosecutorial discretion” to allow jaywalkers to apply for jaywalking permits in contravention of a local ordinance outlawing jaywalking. But, this is exactly what the Obama administration has done; therefore, DACA is an unlawful exercise of executive authority.

More importantly perhaps, DACA is imprudent. Although compassionate in its intent to allow those who came to the United States unlawfully as children and through no fault of their own to begin the process of integrating legally into United States society, it contributes to the current crisis at the border by further signaling United States policy not to enforce its immigration laws against low priority targets. Remember Fr. Hesburgh’s words: “somehow the sieve that we call a border [must] be tightened up . . . somehow we [we need to] bring our illegal immigration under control.” Amnesty, even in its weakest forms of non-enforcement of the law and deferred action, without corresponding action to tighten the border and control unlawful immigration, leads directly to the current human crisis as thousands of desperate children (and adults) attempt to enter the United States on the promise that the administration will take no action against them.

We are a compassionate people caught once again unprepared for the wave of children risking their lives as a response to our legal policy and their hope for a better life (who can fault their desire?). If we are to welcome immigrants, this is not the way.

Catholic Charities and other organizations will marshal their resources to respond to the very real needs of those who have survived the trek and are now in the United States, but Congress and the President must do their job and work together to solve our broken immigration system. In this, there are three options: 1) a comprehensive reform strategy, 2) a secure the border first strategy, and 3) an amnesty first strategy. Presidents Bush and Obama have fought Congress over the wisdom of strategies one and two. In the meantime, the President has implemented the third strategy, leading to our current crisis.

I continue to favor the first strategy on Fr. Hesburgh’s condition. Some favoring the second strategy recognize that “[t]he equities are such that compelling some illegal aliens to leave at this point would be unduly harsh—many have been here for a decade or more, have strong community ties, and no longer have any meaningful connection to their native lands.” They want—and not without reason—border control first followed by amnesty. Both are reasonable strategies. The third strategy, however, leads to the tragedy of misguided compassion.

Michael Scaperlanda is Gene and Elaine Edwards Family Chair in Law and Professor of Law at the University of Oklahoma College of Law.

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