Democrats warn push for border crossing decriminalization will prove costly in 2020

Democrats warn push for border crossing decriminalization will prove costly in 2020
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Top former Obama administration officials are warning Democratic presidential candidates to back off from their proposals to decriminalize border crossings, saying that it’s bad policy and a surefire general election loser that gives President TrumpDonald John TrumpChelsea Clinton announces birth of third child Ukrainian officials and Giuliani are sharing back-channel campaign information: report Trump attacks 'the Squad' as 'racist group of troublemakers' MORE an opening on immigration.

In an op-ed in The Washington Post this week, former Obama Homeland Security Secretary Jeh Johnson said that decriminalization would attract hundreds of thousands of new migrants to the southern border. He described the proposal as “tantamount to declaring publicly that we have open borders.”


Several of former President Obama’s top homeland security officials interviewed by The Hill went on the record to express shock and dismay after eight of the 10 Democratic presidential contenders on stage at the second night of the debate raised their hands when asked if they support the decriminalization of border crossings.

“We can’t go too far to the left for what people could describe as open borders,” said Marsha Catron, a former deputy assistant secretary at the Department of Homeland Security during the Obama administration.

“I think all of those people onstage who raised their hands will have to walk it back if they make it to the general election or the White House. I understand the emotion involved, we want for people to be treated humanely and with respect, and that’s not happening with the Trump administration. But Jeh Johnson, [former Homeland Security Secretary] Janet Napolitano, these people who have worked in these situations understand, you just can’t have it this way. It’s unworkable.”

At the heart of the issue is Section 1325, a statute in the law that makes crossing the border illegally a federal misdemeanor.

Critics of the statute, led by Julián Castro, a 2020 Democratic presidential candidate and Obama’s former secretary of Housing and Urban Development, say the Trump administration has relied on the law to justify family separations at the border.

Castro is calling for repeal, arguing that those who cross the border illegally can still be deported if they are charged with a civil offense. He has pointed to the origins of the law to describe it as racist, noting that it was passed in 1920 after being promoted by former Sen. Coleman Blease (D-S.C.), who supported segregation.

Proponents for repeal are angered by Johnson’s “open borders” remark and dispute his claim that decriminalization will attract scores of new migrants. They say that Section 1325 was meant as a deterrent to mass migration, and yet the border is being flooded by refugees and asylum-seekers from troubled Central American countries anyway.

The effort to repeal has become a rallying cry on the left, boosting Castro’s campaign and quickly catching on among top contenders for the nomination, including Sens. Bernie SandersBernie Sanders'Medicare for All': The hype v. Maryland's reality Biden says he supports paying campaign staff minimum wage Biden's lead narrows in early voting states: poll MORE (I-Vt.), Elizabeth WarrenElizabeth Ann WarrenWarren warns another 'economic crash' is coming The Hill's Morning Report — Mueller Time: Dems, GOP ready questions for high-stakes testimony Biden's lead narrows in early voting states: poll MORE (D-Mass.), Kamala HarrisKamala Devi HarrisThe Hill's Morning Report — Mueller Time: Dems, GOP ready questions for high-stakes testimony Biden's lead narrows in early voting states: poll New CBS poll shows Biden with 7-point lead in New Hampshire MORE (D-Calif.) and South Bend, Ind., Mayor Pete ButtigiegPeter (Pete) Paul ButtigiegNashville radio host blocked by employer from airing his interview with Buttigieg Buttigieg says white supremacy could be 'issue that ends this country' Biden's lead narrows in early voting states: poll MORE (D).

“[Section 1325] is shrouded in a history of white supremacy,” said Ur Jaddou, the former chief counsel at U.S. Citizenship and Immigration Services. “It was at the heart of the family separations and the purpose of it was to deter immigration, but if you look at the data it hasn’t worked.”

The issue is splitting Democrats along moderate and progressive lines.

Rep. Alexandria Ocasio-CortezAlexandria Ocasio-CortezThe Memo: Trump's risky bid for attention Conservative former NFL player says Trump met with him to discuss 'black America' Louisiana police officer fired after saying on Facebook that Ocasio-Cortez 'needs a round' MORE (D-N.Y.) has put her muscle behind repeal, while centrist presidential candidates, such as Sen. Michael BennetMichael Farrand BennetDemocratic strategist predicts most 2020 candidates will drop out in late fall The Hill's 12:30 Report: Trump hits media over 'send her back' coverage The Hill's Campaign Report: Second debate lineups set up high-profile clash MORE (D-Colo.), are siding with the former Obama officials against repeal.

“As a party, we need to show simultaneously that we can treat people humanely and secure our border,” Bennet told The Hill.

At the debate, former Vice President Joe BidenJoe BidenUkrainian officials and Giuliani are sharing back-channel campaign information: report The Hill's Morning Report — Mueller Time: Dems, GOP ready questions for high-stakes testimony Biden campaign taps foreign policy vet Nicholas Burns as adviser: report MORE appeared to raise his hand in support of decriminalization, but he clarified later that he thinks crossing the border illegally should remain a federal offense, making him the lone top candidate to hold that position.

Democrats believe their eventual nominee is well-positioned to defeat Trump in the general election, in part because he or she can make the case that Trump’s immigration policies are ineffective, inhumane and cruel.

They’re incensed by the family separations that have happened under the Trump administration’s “zero tolerance” policy and the squalid conditions at overcrowded migrant holding facilities.

But the former Obama officials worried that the debate over decriminalization, which has low support in the polls, will level the playing field on an issue where Democrats should have the political high ground.

The Trump campaign’s war room has been blasting out emails hitting the Democrats for supporting “open borders” and cycling footage of the candidates raising their hands on the question of decriminalization through its Twitter feed.

Juliette Kayyem, who was on the Homeland Security Advisory Council during the Obama years, said she was “shocked” by how many Democrats announced their support for decriminalization at the debate. She said that even if section 1325 is repealed, the Trump administration would find some other justification for separating families.

“Trump has given us a great opportunity to address what our immigration policy should be as a nation that was once a beacon for humanity,” Kayyem said. “Instead, we’re focused on an issue that has no relevance to the debate. I understand what’s animating the repeal proponents, but if we were to get rid of every law that is abused by the Trump administration then we’d have no laws.”


Critics of repeal say that smugglers will use the prospect of decriminalization to convince a new wave of migrants to make the dangerous trip to the U.S. border.

Some, such as former Rep. Beto O’Rourke (D-Texas), a 2020 hopeful, say the statute must remain in place as a means of prosecuting human traffickers, although Castro has argued that the criminal justice system has other laws in place to deal with that.

“The big concern everyone shares is that this administration has been aggressively using this section of law in a truly horrifying way, and there’s widespread agreement that should be stopped,” said Cecilia Muñoz, who was on Obama’s Domestic Policy Council. “What we need is clarity on how to address an extremely challenging situation. This proposal to repeal Section 1325 is a distraction and it doesn’t do that.”

But progressives, such as Angel Padilla, the policy director for Indivisible, argue that Section 1325 was put in place to deter mass migration and that the influx of immigrants at the border show that the policy has been an abject failure.

“If the fundamental reason for having this in place is flawed, then it shouldn’t be there,” Padilla said.

“This is not about having an open border. We have a militarized border. We’ve tripled the amount of spending on Customs and Border Protection and doubled spending for Immigration and Customs Enforcement. Repeal does not mean that we don’t enforce immigration laws. Democrats are worried that Republicans are going to attack them over this, but they’re going to call Democrats supporters of open borders no matter what, so why not do the right thing?”