Do not pass “go,” do not get $200, do not even get a hearing. Anyone crossing a US national border illegally will get immediately sent back to their home country for the next 30 days, at least, part of the ban on all border traffic except trade and other essential business. To do otherwise, the White House argued in its announcement last night, would be to put the entire immigration system at risk.
This includes those seeking asylum — if they cross the border first:
In addition to closing U.S. borders to all but “essential travel” and citing concerns over the spread of the novel coronavrius, the Trump administration announced Friday that unauthorized immigrants accused of crossing illegally will face immediate return to their home countries.
The unprecedented announcement raised major questions about the fate of refugees and asylum seekers who regularly cross the southern border without travel documents.
Administration officials sent a resounding message that detention protocols — even for those with valid claims to stay in the U.S. — pose a health risk to immigrants and Border Patrol agents alike.
“Left unchecked, this would cripple our immigration system, overwhelm our healthcare system and severely damage our national security,” Trump said on Friday.
The rule change took place yesterday and has already taken effect. It won’t affect legal immigration or asylum seekers who process normally, apparently, but those who try to cross the border first. The only exemption will be unaccompanied children, the New York Times reports. Acting DHS Secretary Chad Wolf told reporters that he was acting on recommendations from the CDC to limit contact as much as possible:
Chad Wolf, the acting secretary of homeland security, said the United States would also close the legal entry points along the border with Mexico and Canada to tourism. American citizens, lawful permanent residents and those crossing a border to seek medical treatment or attend educational institutions would not be affected. Commercial traffic would remain open, but port officers would stop processing those without legal authority to be in the United States, including asylum seekers.
Mr. Wolf said the Centers for Disease Control and Prevention had issued the order to turn away any people who crossed the southwestern border illegally instead of taking them to a detention center where they could ask for asylum in the United States. President Trump has sought such a restrictive policy for years, but the courts have blocked it as a violation of due process.
“We’re trying to limit the amount of contact we have with these individuals,” said Mr. Wolf, adding that many migrants who cross the border often lack documents to prove their medical history. “It’s going to be very rapid.”
Under the new rule, set to take effect Saturday, Border Patrol agents will be issued biometric tools to process migrants in the field. Migrants who have a criminal history will still be detained, but agents are being directed to take others to the nearest port of entry or airfield, where they are to be returned to their home countries. Unaccompanied children will be exempt from the rule, a Customs and Border Protection official said.
It’s true that courts have intervened to stop these policies before. Will they now? The crisis might change some judicial minds, but if so, it won’t be because the law has changed. Nothing in the Stafford Act provides any new or expanded border authority. The word “immigration” only appears four times in the entire text, and then only in job titles. The word “deport” doesn’t appear at all.
Perhaps no one will want to test this out in court, and maybe the White House assumes that will be the case. I’d bet the ACLU and other organizations involved in the earlier cases are already working on their briefs and arguments for the next lawsuit, though. If so, they had better prepare to be much less popular in the coronavirus era. Governors are ordering Americans to shelter in place and avoid all unnecessary contact with families and friends. In that environment, people are bound to be a lot less sympathetic to uninvited visitors wandering around.
By the way, the judges who will hear these challenges live in places like California, New York, and Illinois too. Don’t think their mindsets might not have changed in this crisis as well. This country, and the entire world, will have a much different idea of the use, purpose, and value of national borders at the other end of the COVID-19 pandemic, with far-reaching consequences not just in North and Central America but also in Europe.
The US isn’t the only country looking to give an immediate boot to uninvited guests, either. Canada announced yesterday that they’ll be handing some folks back to us:
Canada will no longer accept irregular migrants trying to cross the shared border with the United States and will instead return them to U.S. authorities, Prime Minister Justin Trudeau said on Friday.
The move marks a significant change in tactics from the Liberal government, which earlier this week had said those traversing the frontier would be put into quarantine.
“This is a temporary measure which we’ll put in place for as long as the coronavirus crisis lasts. These are exceptional measures to protect citizens,” Trudeau told a news conference. …
“The people who crossed up until today will be in isolation … but in future those trying to cross will be turned back to U.S. authorities,” said Trudeau.
That’s fine, and that’s as it should be. We can quarantine border-violating Americans on our side, and deport everyone who shouldn’t be in this country either. That is precisely the way it should have been all along. No one is owed entry to the US except those who apply for and receive permission to do so legally.
Addendum: Andrew McCarthy’s excellent disposition today on the limit of law in crisis and the necessity of political decision relates to this issue. It might be even better in the context of Jazz’s post earlier today:
We miss that in normal times of peace and prosperity, when the rule of law governs. But in crisis, we see the limits of law. In essence, these questions call for political determinations. They turn on the perception of peril at a given time, which is a function of fluid circumstances that cannot be forecast with precision.
The law also works best when we are confident we know enough about a topic to regulate for all future conditions. The law works well for bank transactions, and especially for bank robbery. For infectious disease outbreaks . . . maybe not so much. …
This is, and has to be, the pattern of political determinations: Err on the side of safety, but abate if, with the context of better information, living more realistically with the threat begins to appear less dire than the alternatives. Here, the coronavirus shutdown may have been an understandable first reaction, even a justifiable one. But it has to be weighed against the catastrophic consequences. And it has to factor in our improving understanding of the threats and the behaviors that mitigate it — hand washing, other rudimentary hygiene, social distancing, avoiding large crowds for now, extra safeguards for the elderly and people with preexisting health problems, and so on. If we do these things, many fewer people (especially vulnerable people) will be exposed.
Even with all that, and even if we can minimize the number infected and eventually reduce the fatality rate, it is entirely conceivable that thousands more people will die from COVID-19 than die from flu. But tragic as that outcome would be, it would pale in comparison to the ruin that looms if we do not resume a semblance of normal life.
No matter what happens, the law — i.e., the Trump administration’s conclusions about its DPA, Stafford Act, and constitutional authorities — will have little to say about it. The history of this country is one of ceding authority to the chief executive, to an extent commensurate with the public’s sense of real threat, particularly lethal threat on a mass scale. Later, Congress and the courts push back, but only once the perception of peril ebbs. They push back with law. Yet, the extent to which law is a real barrier against to future presidential muscle-flexing, for good or ill, depends not on what the statutes and opinions say, but on how scared we are.
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