This editorial has been updated.
The measure is likely to face immediate judicial challenge by immigrant rights groups; it may be no more legal or constitutional than some other recent moves. Last week, just days after the administration announced with fanfare that it would bar most asylum applicants whose bids had not already been rejected in another country, the acting chief of Customs and Border Protection acknowledged that he expected the new rule was just a pilot program that would likely be enjoined by the courts. (A federal judge in Washington declined to halt the rule change on Wednesday. But a federal judge in San Francisco late Wednesday issued an order temporarily blocking the administration policy. U.S. District Judge Jon S. Tigar said the rule probably violates U.S. law by categorically denying asylum to most people crossing the border. The Justice Department is expected to appeal the ruling.)
In its approach to the migrant crisis, the strategy employed by President Trump and his advisers seems aimed as much at the Republican base as at stanching the tide of Central Americans seeking to enter the United States. The administration’s spitballing stands in contrast to serious ideas that would overhaul asylum, detention and adjudication procedures to make the current dysfunctional system more rational, efficient and humane. Legislation introduced last month by Senate Democrats is a good-faith start along those lines.
The bill, sponsored by Sen. Jeff Merkley (Ore.) and Minority Leader Charles E. Schumer (N.Y.), would ban family separations, except with strict exceptions; authorize the hiring of dozens more immigration judges in order to shrink a court backlog that now forces migrants to wait months or years for their cases to be adjudicated; and establish a system to aid and track asylum seekers to ensure they show up for court hearings. The proposal would also set humane standards for food, hygiene and medical care at migrant detention centers and other facilities, and ensure that migrant children would be expeditiously placed with sponsors while they awaited disposition of their cases.
Some provisions would be deal-killers for Republicans, but the bill is a sound basis for negotiations if the two parties could manage to take up so fraught a topic on the eve of presidential elections, which looks unlikely. It includes more realistic and pragmatic steps than other Democratic plans, such as former San Antonio mayor and current Democratic presidential candidate Julián Castro’s proposal to decriminalize unauthorized border crossings. That proposal’s conceivable advantages — in reducing the federal court caseload, for instance — are outweighed by the folly of incentivizing even more Central Americans to make the hazardous trek northward. It’s hard to see how U.S. interests would be served by any move that would exacerbate an already volatile border crisis.