In the debate surrounding the Trump administration’s “zero tolerance” policy, and specifically, the intended consequence of children being separated from their parents due to the latter being held in federal prisons, there is a consistent oversight among those who support such an act: the rights of undocumented immigrants.
If you’re among those who have been having the discussion about a practice which has been condemned by US allies, the United Nations and human rights organizations, go ahead and mention the rights of those being detained. Plenty of reactions have been seen so far. The most common rebuke is a knee-jerk, “They’re illegal; they don’t have rights.” Except “they” do.
“They’re committing a crime,” goes another. While the debate is certainly a moral one, it’s also a legal one. Quite decisively so, too. For Trump supporters, conservatives, right-wingers — however they identify politically — there’s a strong autocratic thread that ties their arguments to the notion that illegal acts lead, or should lead, to the complete suspension of rights. This is the reason, of course, that we and like societies have rights, though: So that people are granted due process and rights are not forfeited when we are accused of crime. As it stands, improper entry into the United States is classified as a misdemeanor — the same as public intoxication or reckless driving.
This absolute and punitive take on justice, which always exists in the minds of autocratic personalities, has taken on an institutional character which harkens back to times of sedition and immigration acts targeted toward the far left. In its history, the United States has periods of very stark defiance to the concept of equal rights and equal protection under those rights.
Today, undocumented immigrants are being denied rights guaranteed by the United States Constitution. These rights are also human rights. There are caveats to this, however, as Congress reserves nearly full authority to regulate immigration. There’s also the matter of criminal law, which Attorney General Jeff Sessions and the Trump administration stand determined to prosecute illegal border entries as. Even with Trump’s executive order on family separations, the “zero tolerance” policy it was born from still stands.
As rights literally exist to defend people from abuses of state power, there is also no condition under which being charged with a crime suspends rights either. Anyone who ever took a US history class in high school knows about the Miranda warning and its purposes: the right to a lawyer, the right to not self-incriminate, etc. The bottom line is that under the US Constitution, undocumented immigrants have rights regardless of whether or not they’re breaking the law by being in the country.
This hasn’t always been without challenge, though. In the Bernal v. Fainter case in 1894, the Supreme Court’s ruling set the precedent for putting laws which discriminate on the basis of alienage under “strict scrutiny.” Thus, any laws that fail to prove that they are “narrowly tailored” to a “compelling state interest” would be struck down or overturned. Despite a “substantial basis in the Fourteenth amendment,” there have been criticisms and challenges, typically from the political right.
We must also contend with the fact that Trump was able to fill Antonin Scalia’s spot on the Supreme Court bench after Republican obstruction prevented Barack Obama from doing so. While Obama’s record on immigration was long a point of contention for the left, and thus no guarantee that a replacement picked by him would be sympathetic, it is much more certain that Justice Gorsuch would back the Trump administration.
That being said, the Bush and Obama administrations both considered separating families, but they abandoned the idea. Both Bush and Obama faced much higher rates of undocumented immigration. Border apprehensions actually peaked at 1.6 million in 2000, and they were down 26 percent from 2016 to 2017. The US government estimates that about 200,000 undocumented immigrants entered the country in 2015, while nearly 2 million did in 2000.
It seems at the moment that the Trump administration is employing plenary power. This imbues the government with broad authority in the name of immigration policy. This method, which permits what is typically unconstitutional, was popular when the federal government wanted to persecute immigrants who were communists, anarchists and pivotal to the labor movement in the late 19th century. Trump, and more specifically, his Senior Policy Adviser Stephen Miller, used plenary power to enact the Muslim bans that roared in with Trump’s first term. Miller is also the driving force behind the “zero tolerance” policy for undocumented immigrants.
While rulings addressing the Muslim ban forced Trump to retreat on the policy somewhat, media attention was also garnered by thousands of people occupying airports and demonstrating outside of them which sent powerful messages in regard to public opinion. While the bans weren’t completely repealed, the legal challenges are in place which mitigate their extent. This suggests that similar acts of direct action must accompany any court challenges to what is happening to undocumented families at the border. For instance, ICE confirmed that the day before Trump’s executive order was issued, a detention facility in Portland, Oregon, was shut down due to protests outside.
While the direct action taken in Portland should be seen as a victory, celebration of the president’s executive order is misguided. There is no provision included to reunite families that have already been separated. Again, the “zero tolerance” policy remains in effect and there is no clarification if family separations will continue after a procedural delay. The Trump administration is also pursuing ways to overturn restrictions on length of detentions, which implies indefinite detention as cases are expedited through courts. As Attorney General Jeff Sessions is committed to limiting further what counts as basis for asylum, deportations could also be expedited.
The avenues provided by the state do not always provide a path to justice, nor does the state always respect or preserve rights that have been attained. Rights are not willingly afforded to the people by the benevolence of the ruling classes. Laws can permit or restrict rights and thus do not constitute any prerequisite for their pursuit. They have to be fought for and defended. Rights have to be taken.