Pelosi has won — and she's now the only one able to secure the border

Pelosi has won — and she's now the only one able to secure the border
© Greg Nash

House Speaker Nancy PelosiNancy Patricia D'Alesandro PelosiDOJ plans to release 'lightly redacted' version of Mueller report Thursday: WaPo Pelosi accuses Barr of 'single-minded effort' to protect Trump against Mueller report Dems attack Barr's credibility after report of White House briefings on Mueller findings MORE (D-Calif.) claims that “Democrats are committed to border security,” but the Democrats have opposed President Donald TrumpDonald John TrumpHouse Dems demand Barr cancel 'inappropriate' press conference on Mueller report DOJ plans to release 'lightly redacted' version of Mueller report Thursday: WaPo Nadler accuses Barr of 'unprecedented steps' to 'spin' Mueller report MORE’s efforts to do that.

Pelosi supported the joint resolution to terminate Trump’s declaration of a National Emergency at the Southern border. The resolution was passed in both chambers and sent to Trump on March 14. He vetoed it the next day.

Congress appears unlikely to override the veto, so the fate of the declaration probably will be decided by the same Ninth Circuit Courts that flouted precedent to block Trump’s travel ban, which almost certainly will result in another lower court defeat for Trump. The Supreme Court, however, may reverse the lower courts, as it did in the travel ban case. But that could take quite some time.

The Catch-22 at the heart of the matter

During the Bill ClintonWilliam (Bill) Jefferson ClintonTrump team spurns Adam Smith with its trade stance New Broadway play 'Hillary and Clinton' debuts Trump will allow Americans to sue companies in Cuba MORE administration the government entered into a settlement agreement that makes it difficult to remove aliens who bring their children with them when they make an illegal border crossing.

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This became apparent last May, when Trump announced a zero-tolerance border security enforcement policy. Illegal entries are a crime: The first offense is a misdemeanor and subsequent offenses are felonies. Trump tried to use a no exceptions threat of a criminal prosecution as a deterrent. “If you cross the border unlawfully, then we will prosecute you,” he said — no exceptions for aliens who bring their children with them.

The problem was prosecution of an alien who has his child with him requires the government either to detain the child with him while he is being prosecuted or separate him from his child.

If the government chooses to detain the child, the detention must comply with the guidelines in the Flores Settlement Agreement, the Homeland Security Act of 2002, and the Trafficking Victims Protection Reauthorization Act of 2008.

Flores, the 1997 settlement agreement between immigration activist groups and the government, prevents the government from detaining the children of illegal crossers for more than 20 days. It requires the placement of alien minors at non-secure, state-licensed child-care facilities. Their parents can’t go with them. According to the Congressional Research Service, there aren't any licensed state facilities for alien minors to stay at with their parents.

The zero-tolerance program required prosecutions, so thousands of children were separated from their parents — and all Hell broke loose.

Pelosi called family separations “heartbreaking and barbaric.” She wasn’t wrong.

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Trump reacted to the criticism by issuing an executive order requiring children to be kept with their parents in appropriate facilities during the pendency of criminal proceedings against their parents.

To do that and stay within the law, the order directed the Attorney General to request a modification of the Settlement Agreement to permit children to be detained with their parents throughout the pendency of the criminal proceedings.

The Ninth Circuit Court that heard the case denied the request.

Trump — unable to separate the children because of public outcry and unable to keep them with their parents during lengthy court proceedings — had to release the families within 20 days. In other words, they would be apprehended and then released shortly afterwards, i.e., “catch and release.”

This is precisely what Trump railed against on the campaign trail. He wasn’t wrong.

The number of aliens bringing children with them when they make illegal crossings has dramatically increased. Only 11,000 family units were apprehended in fiscal 2012. In the five-month period from October 2018 through February 2019, however, the border patrol apprehended 136,150 family units.

According to a recent letter that the National ICE Council sent to Trump, “catch and release is not just happening, it's in overdrive.”

Proposed regulations

While I agree with Pelosi that it is cruel to detain children, it isn’t possible to secure the border if nothing is done to stop aliens who bring children with them from making illegal crossings.

It may be possible to find an acceptable solution if both sides take a fresh, unbiased look at the situation.

Trump filed a proposed rule to establish regulations that would replace the Flores Settlement Agreement.

The regulations would create a federal licensing scheme for approving residential centers at which children could stay with their parents. The federally licensed facilities would meet essentially the same standards that are required by the Settlement Agreement for state licensed facilities.

Even if the courts do not block the proposed regulations, Democrats will likely try to prevent Trump from receiving the funding needed to implement them.

If Pelosi were to agree to such an approach, it might prove that Mark Krikorian was wrong when he said that the Democrats really want an open border.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.