Senate Democrats are now set to introduce a major new proposal that will offer another way: It would make family separations illegal; invest much more in legal support for asylum seekers; and beef up humanitarian standards for the treatment of families and children.
The proposal is spearheaded by Sen. Jeff Merkley (Ore.) and Senate Minority Leader Chuck Schumer (N.Y.), and co-sponsored by three dozen Democratic senators, including those running for president.
As such, it will function as a leading Democratic answer to Trump’s immigration agenda, and to the worldview that treats deterrence through maximal cruelty as an acceptable answer to migrations.
“The strategy of treating refugees deliberately in a fashion that injures them to discourage additional immigration is unacceptable under any moral code or religious tradition,” Merkley told me.
“This legislation is a necessary step to restore America’s moral credibility, and an example of how we can deal with our immigration issues with dignity and common sense," Schumer said in a statement sent my way.
Democrats would end family separations
The Merkley-Schumer proposal would codify in law an explicit prohibition on separating families, except in certain limited circumstances, such as when it’s determined the child is in danger.
Right now, due to a court settlement, the government can detain families for 20 days, after which it must release children. The administration had continued holding adults after that period, requiring separation — while claiming this would dissuade families from seeking asylum — but halted that amid intense blowback.
Still, Trump could restart it at any time. And family separations might resume in a different way: The Times reports that Trump’s own acting Homeland Security secretary, Kevin McAleenan, privately opposed the new mass detentions, because U.S. citizen children (who can’t be arrested) will get separated from undocumented parents who are detained.
The Merkley-Schumer bill would make all such separations illegal, and reaffirm the court settlement limiting child detention. Functionally, this would mean the administration must release families after 20 days.
The bill would speed processing and expand migrant services
The prohibition on family separations is a direct challenge to the Trumpist argument. He claims the spike in families seeking asylum is due to a belief that they can game the system: Once they pass the initial credible fear screening, they’ll be released and will disappear into the interior while awaiting hearings to determine whether they qualify for asylum.
The Merkley-Schumer bill answers this, in two ways.
First, it provides for the hiring of many more immigration judges, to end court backlogs so far less time transpires between the initial screening and the final hearing.
Second, the bill fully funds the family case management system — a government pilot program Trump ended. This tracks and provides services to asylum seekers — both social and legal services.
The basic theory here is that Trump’s argument is false: Families actually do show up for hearings at very high rates. The best statistics show this is true, and also show that the rate climbs even higher when families have lawyers. Indeed, the family case management program that Trump nixed — and Democrats would fund — had been hugely successful in getting families to show up.
The core idea: If you make it more likely that families will succeed in qualifying for asylum, while also beefing up efforts to track and support them, they will show up en masse. In many cases, they will stay with other family members.
In short, Democrats argue that the release of families awaiting hearings is not a bad thing and is eminently manageable. “When there’s a case manager who stays in regular contact and alerts you of hearings, people show up,” Merkley told me.
The core difference with Trump
This is a core difference with Trump and restrictionists, who say releasing families is unmanageable and a serious threat. Of course, to make that case, Trump must regularly falsify those show-up rates.
The deeper difference here is that Trump wants fewer people to apply for asylum, because he wants to scale back our international human rights obligations. That’s why he’s also doing many, many things to make it harder to apply and qualify for asylum — so fewer people achieve it, even if they legitimately merit it.
Trump partisans would also argue that a system that readily releases families will increase the draw to make the trek to the border, whether or not people qualify.
The Democratic answer to this is that we should make large investments in improving civil conditions in Central American countries, to reduce the factors that are spurring the migrations in the first place.
Other answers include seeking regional solutions to share the refugee burden, and creating other channels to apply from afar for refugee status — while raising the cap on Central American refugees accepted here, to incentivize using those channels — as alternatives to traveling to the border. Other Democratic bills would do these things.
As Schumer puts it, the Democratic approach would both “strengthen the asylum system” with more resources while also providing “the security assistance Central American countries need to crack down on the drug cartels and gangs that send so many fleeing.”
The bill would beef up humanitarian protections
Finally, the Merkley-Schumer proposal would codify new humanitarian standards. It would require an immediate professional medical assessment of children; set nutrition benchmarks for meals; require supplies for basic hygiene; set standards for physical conditions; and more.
“In all kinds of ways, this would make the immigration enforcement system more humane," Kerri Talbot, the director of federal advocacy at the Immigration Hub, told me.
To sum up: The Democratic approach would invest in repairing civil conditions in Central America and create new channels to migrate legally as refugees, to reduce the incentive to make the journey. It would combine that with beefed-up efforts to handle the influx — while minimizing detention and cruelty-as-deterrence — in order to manage it humanely, the theory being that this is achievable.
The Democratic proposals won’t get votes in the GOP Senate, of course. But Democrats can put their stamp on this debate, with plans that offer a sharp contrast with Trump’s coming mass arrests, which will no doubt be followed by other cruelties.