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The difference between DeSantis’s migrant flights and the Biden administration’s

Fox News host Sean Hannity.

When Fox News host Sean Hannity took to the airwaves Tuesday night, you could be forgiven for thinking he had some tough words for an official like Florida Gov. Ron DeSantis (R) transporting migrants around the country.

“If I went down to the border and I put people in the back of my car, or I transported them to another state, would I not get arrested for human trafficking?” Hannity said. “Isn’t that against the law?”

Hannity, of course, wasn’t talking about the most high-profile recent example of that, which involved DeSantis. Instead, he was talking about President Biden.

The dispute over DeSantis and Texas Gov. Greg Abbott (R) sending migrants to Democratic areas and whether those migrants were misled into participating has landed, predictably and perhaps inevitably, in whataboutism. In recent days, defenders of DeSantis and Abbott have increasingly cited a supposed incongruity in the criticisms: They note that the Biden administration also flies and transports migrants to other areas of the country.

And that’s true. But just as criticisms of the Biden administration’s supposed “ghost flights” have long been overblown, the comparison between the two situations mismatches in some key ways.

The whataboutism drumbeat has picked up in recent days.

“Republican governors flying illegal aliens to a liberal tourist destinations: Kidnapping!” summarized Rep. Jim Jordan (R-Ohio). “Democrats like Joe Biden flying illegal aliens at midnight to your community: Charity, compassion, a chance.”

“You can’t have it both ways,” Rep. Troy E. Nehls (R-Tex.) tweeted Tuesday.

“So, when Biden is flying these people all over the fruited plain in the middle of the night, I didn’t hear a peep out of those people,” DeSantis added earlier Tuesday, as his campaign repeatedly made the same argument on social media.

The criticism of the Biden administration flying migrants around the country has been building for some time. It was spurred on by a Republican candidate for New York governor releasing body-camera footage of a plane carrying more than 100 unaccompanied migrant children landing in Westchester County, N.Y., in August of last year. And it’s an attractive subject for a conservative media ecosystem which often plays up border issues close to an election.

But the criticisms often skirt over the fact that these flights carry children — and that’s important. In fact, the government by law cannot hold unaccompanied minors in border facilities for more than 72 hours, and they must be cared for while they are transported to relatives, sponsors or shelters.

“Our legal responsibility is to care for unaccompanied children while they are on our watch, and that includes connecting them to vetted sponsors,” Department of Health and Human Services spokesman Jorge Silva told The Washington Post’s Fact Checker back in February.

That law isn’t new, meaning such flights occurred under the Trump administration, too — without the backlash from Trump’s partisans. Reports from 2018 cited flights of migrant children to New York and other places. At one point in 2019, the Trump administration sought a private contractor who could transport 225,000 migrants across the country to temporary shelters, because of overcrowding at the border. A top Immigration and Customs Enforcement official clarified to Fox News at the time that such transports had already been taking place.

(Critics have also cited the early-morning hours of some of these landings under the Biden administration, suggesting that they were intended to avoid detection. But officials have explained that’s often done to avoid exposing the identities of the children involved or subjecting them to unwanted attention. And a CNN review found most headed to Jacksonville, Fla., didn’t land in the dead of the night.)

The numbers overall under Biden do appear to have increased, according to official data from the Department of Health and Human Services on where the children are released. That reflects the increased numbers of unaccompanied minors crossing the border and the easing of pandemic-era restrictions. Border facilities have been overflowing. But these kinds of flights happened before, because the federal government has to comply with the law.

And that’s another key distinction: It is indeed the federal government that is charged with enforcing immigration law. Congress has given more authority to states and local officials over time, but federal law preempts state law.

A last key distinction is who is being flown, along with the how and why.

The federal government does sometimes transport adult detainees to other detention facilities, but the evidence indicates the ones that are the subject of GOP criticism — the migrants being released — are children. They are technically undocumented immigrants, but they are being transported under the legal process.

The buses and planes used by Republican governors, by contrast, convey people of all ages, and they are asylum seekers. The program is set up for people who have been processed by federal immigration officials and are awaiting their dates in court. DeSantis and Abbott have said that these migrants signed waivers, meaning their transportation was elective rather than required by law.

And if that’s all it turns out to be, there’s likely to be no legal trouble. Some migrants have said they were grateful to be transported to more welcoming places, but Democrats, immigrant advocates and some of the migrants themselves have suggested the migrants might have been misled into participating. That’s the stated reason most are objecting to the practice. It’s really the crux of the matter.

All of which reinforces that not all transportation of migrants is the same. Not that plenty of people involved will bother with the meddlesome details.

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