Criminal entry to the United States is now a Democratic talking point — and it’s worth considering how we got here and how far the Democrats have moved since liberal lion Sen. Ted Kennedy made the penalty for illegal entry more severe.
Section 1325 of the Immigration and Nationality Act (INA) makes entering the United States without an inspection a crime. During the first Democratic presidential debate, Julian Castro insisted it should only be a civil offense, challenged his opponents to agree, and was lauded as a result.
Decriminalization would eliminate the statute’s value as a deterrent, which was not only part of its original intent, but also was supported by both Republicans and Democrats until very recently.
History of the entry without inspection provision
The Immigration Act of 1924 established national immigration quotas that favored immigrants from northern and western Europe over immigrants from the southern and eastern parts of the continent, and banned most immigration from Asia.
Nativist politicians wanted to restrict Mexican immigration too, but American employers who relied heavily on cheap Mexican labor stopped them.
A white supremacist senator named Coleman Livingston Blease (D-S.C.) proposed a compromise. Instead of establishing a cap on the number of legal immigrants from Mexico, pass a law making illegal crossings between ports of entry a crime.
A provision in the Immigration Act of 1929 implemented his proposal by making entry without inspection a misdemeanor punishable by imprisonment for not more than one year or by a fine of not more than $1,000, or both.
Section 275 of the INA of 1952 made a first entry without inspection a misdemeanor punishable by imprisonment for not more than six months, or a fine of not more than $500, or both; and subsequent offenses a felony punishable by imprisonment for not more than two years, or a fine of not more than $1,000, or both.
The notion of criminal penalties as a deterrent to illegal crossing was accepted by both parties.
In section 543(b)(2) of his Immigration Act of 1990, Sen. Ted Kennedy (D-Mass.) made punishment for illegal entries more severe by amending section 275 to raise the cap on fines for a first offense to $2,000.
Prosecutions
There were not many prosecutions until 2005, when President George W. Bush launched Operation Streamline, which called for criminal charges to be brought against every person who crossed the border illegally. And prosecutions continued to increase during Barack Obama’s presidency.
By the time Donald Trump became president, improper entry and re-entry prosecutions amounted to almost half of all federal prosecutions.
To be clear: Illegal entry prosecutions don’t require the separation of children from their parents.
The Flores Settlement Agreement made the separation necessary, not the prosecutions. Flores prohibits the detention of children for more than 20 days. When the children are released, Trump has to separate them from their parents unless he releases their parents too.
Trump separated families at first, but this resulted in an extreme backlash from the public and his own party. On June 20, 2018, he issued an Executive Order stopping the separations for entry without inspection prosecutions.
It is cruel to separate children from their parents, particularly very young children, but it is a common occurrence. As of Dec. 31, 2017, there were approximately 1.49 million people in American federal and state prisons, and more than 50 percent of them had a child under the age of 18.
State sovereignty
Controlling alien admissions is a core element of state sovereignty. The Supreme Court has held that Congress has absolute authority to control immigration by establishing rules for the admission, exclusion, and deportation of aliens.
The term “alien” means any person not a citizen or national of the United States.
The authority to establish such rules is meaningless when aliens avoid an inspection by crossing the border surreptitiously between ports of entry. And the government has no way of knowing how many aliens have entered that way, who they are, or what their intentions are.
Apparently, the Democrats are willing to sacrifice state sovereignty if it is necessary to remove Trump from the White House.
They have willfully denied that there is a border crisis and opposed his efforts to secure the border.
For instance, they have shifted attention from the crisis caused by the flood of illegal crossers pouring across the border to complaints about the way Trump is treating the crossers — and because they control the House of Representatives, they have been able to prevent him from getting the funding he needs to treat them properly.
Section 7 of the U.S. Constitution, says that, “All Bills for raising Revenue shall originate in the House of Representatives…”
Former DHS Secretary Kirstjen Nielsen testified at a Homeland Security Committee hearing that DHS border detention facilities were not suitable for women and children. They were supposed to be short-term processing centers for young, adult males.
She requested funding to construct facilities that would be suitable for detaining women and children, and this was not the first time the Trump administration made that request.
Instead of discussing her funding request, the Democrats criticized her for holding children at crowded, inappropriate detention centers.
How much unnecessary suffering have the Democrats caused by refusing to provide funding for family detention centers when the need was brought to their attention?
But conditions at the border got so bad in the last few weeks that the Democrats were not able to prevent the passage of a bill that will provide funding for the construction of facilities that are appropriate for detaining families.
It also should reduce the number of unconscionably overcrowded detention centers.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1