If Schumer wants to end child separation urgently, why doesn't he back Cruz's bill?

To rephrase that more bluntly and cynically: Is Schumer willing to back Cruz’s bill or is this issue simply too useful to him politically as an unsolved problem?

Read this if you missed it last night for background on Cruz’s bill. The key point is that it *doesn’t* demand all sorts of enforcement concessions from the left. Democrats have complained all week that it’s immoral for Trump to separate kids from their parents and then invite Congress to reunite them by passing legislation that includes all of the things on his immigration wish list — a wall, limits on chain migration, the end of the diversity visa lottery. That would be legislative hostage-taking, essentially ransoming the kids to force Democrats to give him what he wants. Cruz’s bill avoids that. Under his proposal families get reunited, we double the number of immigration judges, and each asylum applicant has their case resolved in 14 days. Why shouldn’t Schumer take it?

When I floated that question on Twitter, Democrats came back with two objections, one decent, one not so much. The not-so-much one: Why should they back Cruz’s bill when Dianne Feinstein floated her own proposal to resolve this issue 10 days ago, one that has the support of every Democrat in the caucus? The short answer to that is “Because they’re in the minority. Why should the majority rubber-stamp their bill instead of crafting one themselves that achieves the core goal of both parties?”

But if you don’t like that response, let me invite you to read Gabe Malor’s assessment of Feinstein’s bill. He’s something of an expert on the subject and he’s concluded that it’s bananas. By applying the “no child separation” rule to basically any federal law enforcement official within 100 miles of any port of entry — which includes every international airport in the U.S. — the Democratic bill would make it so that any person with a child who’s detained by a federal officer for any reason would either have to be jailed with his/her child or let go. It’s not limited to immigration or to the border. Bananas:

The ridiculous consequences of passing the Democrats’ hastily written mess are easily demonstrated. Let’s say FBI agents hear about a drug trafficker and murderer in Buffalo, New York. The agents get a warrant to raid the drug trafficker’s house and arrest him. While they do so, they discover the drug trafficker’s minor daughter is home with him. Feinstein’s bill would prohibit the FBI agents, while arresting a drug trafficker, from separating this child from her father.

This is not a farfetched hypothetical. FBI agents are agents of DOJ (a designated agency) and Buffalo is within 100 miles of the border. So long as the daughter is either a U.S. citizen or an alien without permanent status, the FBI agents would be unable to proceed with normal law enforcement activities. The agents would be forced to choose between booking the drug trafficking murderer into jail with his daughter or not booking him into jail at all.

Panicky lawmaking often produces absurd results, and this one presents law enforcement with the choice between keeping children with their criminal parents while prosecuting them almost anywhere in the United States and for any crime whatsoever, or not prosecuting criminal parents at all. The legislation is not limited to unlawful entry prosecutions, to migrants, or (absent amendment) even to alien children.

It’s a nonstarter as written, but it’s not surprising that it would have glaring errors of this sort. The point of Feinstein’s bill wasn’t to pass and provide workable legislation, it was to lay down a marker for where Democrats stand. She threw something together in 10 minutes that her party could point at as proof that they’re against child separation for illegal families — and every other family, it seems. Oops.

The better objection from Dems to Cruz’s bill is that it too is a nonstarter because of its 14-day framework. That isn’t nearly enough time for asylum applicants to gather facts for their applications, and immigration judges would be under such intense time pressure to cope that they’d have little choice but to give snap judgments. Meritorious asylum applicants would end up being rejected. That’s a fair point; ideally the 14-day timeline could be negotiated out to something more forgiving. But not too forgiving: The reason Cruz proposed a timeline that tight in the first place is to avoid catch-and-release of asylum applicants. Detaining families together for 14 days isn’t much of a hardship. Detaining them for 90 days, say, would be more of a hardship for both the feds and the family itself. That’s where the compromise needs to happen. Republicans will go along with keeping families together if Democrats go along with some as-yet-undetermined extended period of family detention in lieu of catch and release. That’s the starting point for Schumer — if he values keeping families together more than he values using this issue as a midterm bludgeon against Trump.

Because it could be a very heavy bludgeon, particularly against the centrist Republicans in the House who have been scrambling lately to try to get a vote on DACA.

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