Democrats’ Border Separation Bill Would Let Nearly All Parents Who Commit Federal Crimes Get Off Scot-Free

Democrats’ proposed legislation to prohibit so-called border separations would actually prevent federal law enforcement agencies almost anywhere inside the United States from arresting and detaining criminals who are parents having nothing to do with unlawfully crossing the border and seeking asylum. Every Senate Democrat has now signed on to cosponsor a bill written so carelessly that it does not distinguish between migrant children at the border and U.S. citizen children already within the United States. The bill further does not distinguish between federal officers handling the border crisis and federal law enforcement pursuing the ordinary course of their duties. Let’s break down Sen. Dianne Feinstein’s proposed “Keep Families Together Act” to see where Democrats went wrong. The bill provides that “[a]n agent or officer of a designated agency shall be prohibited from removing a child from his or her parent or legal guardian at or near the port of entry or within 100 miles of the border of the United States” (with three exceptions to be discussed later). Four immediate warning signs in this provision should put the reader on notice that this bill is not what Democrats claim. First, “designated agency” here is defined as the entirety of the federal departments of Homeland Security, Justice, and Health and Human Services. The scope of the bill is not limited to those portions of these departments involved with the border crisis, and there is no other limiting factor in the bill that would cabin the prohibition on family separation to immigration-related matters. In other words, this bill is going to regulate conduct across a great many federal offices that have nothing to do with separating children from families arriving unlawfully in the United States. Second, “agent or officer” is not defined by the legislation, except to say that it includes contractors. Federal law, however, already defines “officer” to include (with exceptions not relevant here) every federal employee appointed to the civil service by the head of an executive agency and ultimately overseen by the head of an executive agency. Here again, this bill is not limited to controlling the behavior of the DHS, DOJ, or HHS officers involved in the border crisis. The proposed law would apply with equal force to, say, FBI agents (part of DOJ), Secret Service agents (part of DHS), and Centers for Disease Control officers (part of HHS) in the exercise of their everyday duties. Third, “at or near the port of entry or within 100 miles of the border” does not meaningfully limit the geographic scope of this bill. That area includes almost the entirety of the geographical territory of the United States and the vast majority of people living in it. Two hundred million people live within 100 miles of the border. That’s roughly two-thirds of the U.S. population. Even more live near ports of entry, including in places far from the border crisis, like Salt Lake City, Utah (nearly 700 miles from the nearest border crossing), Tulsa, Oklahoma (more than 600 miles from the nearest border crossing), and Nashville, Tennessee (nearly 600 miles from the nearest border crossing). All major U.S. metropolitan areas fall within either 100 miles of the border or are near a port of entry or both. Finally, “child” is defined in this legislation as any individual who has not reached 18 years old who has no permanent immigration status. This astonishing definition includes U.S. citizens under the age of 18. Citizen children by definition have no immigration status, permanent or otherwise. (Even if the Democrats belatedly amended this provision to restrict the definition to alien children without a permanent immigration status, that amended definition would still include non-migrant aliens, like tourist children, Deferred Action for Child Arrivals recipients under the age of 18, and children whose parents have had their immigration status revoked.)

For more of this article from attorney Gabriel Malor, click on the text above.

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