“We are just enforcing the law.”
This is how the Trump administration has justified its shocking “zero tolerance” immigration policy that has resulted in over 2,000 children being forcibly separated from their parents in just six weeks. It’s also the rationale for the new executive order: that the law must be changed in order for families not to be torn apart.
“It’s the law, and that’s what the law states,” said White House Press Secretary Sarah Huckabee Sanders. Numerous administration officials have concurred.
They are all hypocrites. If the Trump administration were really enforcing laws without exceptions, it would have enforced them against Wells Fargo, Exxon Mobil, Devon Energy, Bank of America, and Equifax. In fact, the government chose not to enforce the law against each of them and many others, on numerous occasions over the last year.
But of course, “zero tolerance” is not how the law works. As administrative law and even Jesus of Nazareth have agreed, no law is meant to be enforced without exception. Justice is always tempered by discretion—and mercy.
The legal pretext for “forced separation” is that illegal immigration is a crime. Actually, crossing the U.S. border without authorization is only a misdemeanor—like running a red light or drinking a beer in public—called “improper entry.” Crossing it a second time is a felony called “reentry.”
For fifty years, from the passage of the Immigration and Naturalization Act in 1968 until the “zero tolerance” policy of 2018, these laws were enforced at the discretion of the police, border agents, and prosecutors—like all criminal laws. Normally, illegal immigrants were simply deported once they were caught, via an expedited system of immigration courts, with families held together in the meantime.
Now, thanks to “zero tolerance,”—which Attorney General Jeff Sessions has more accurately described as “100% prosecution”—law enforcement officers are ordered to treat everyone, even asylum seekers, as a criminals and process them in the criminal justice system. Since children cannot be detained for more than 20 days—a result of a 1997 agreement known as the “Flores settlement” that requires “forced separation.”
The new executive order suspends only that last provision, leaving all the rest of “zero tolerance” in place.
So, yes, in a sense, this is simply enforcing a law—but it is enforcing a law that was never enforced, and never meant to be enforced, in this way. Not just immigration law but criminal law in general always allows for discretion on the part of law enforcement; otherwise we’d all go to jail for drinking wine at a picnic.
Indeed, this administration has been the most non-enforcing of laws in American history. Consider these examples:
- In 2017, enforcement actions by the Securities and Exchange Commission fell 17%, to their lowest level since 2013. Commentators are debating why this has taken place, but surely the pro-business, deregulatory emphasis of the Trump administration is a central reason. The SEC’s co-director Steven Peikin said in October 2017, that “it may be the case that we have to be selective and bring a few cases to send a broader message rather than sweep the entire field.”
- The Department of Justice has not filed a single new action under the Voting Rights Act since Trump’s inauguration. That’s not surprising, given that Sessions’s DOJ has come out in favor of an array of voting restrictions; it’s consistent with the administration’s overall views.
- Environmental Protection Agency enforcement actions have dropped by more than 30 percent from Obama administration levels. Demands that factories clean up pollution have plummeted nearly 90 percent. Superfund enforcement has been cut 37 percent, causing many cleanups to simply stop altogether. Fines collected in Trump’s first year were less than half what they were in George W. Bush’s first year. And EPA Administrator Scott Pruitt has cut sweetheart deals with ExxonMobil, Carbon Black, Harley Davidson, and his longtime patron, Devon Energy.
- The number of regulatory actions at the Occupational Safety and Health Administration dropped by more than half in 2017, reflecting Trump’s deregulatory agenda.
- Not a single Consumer Finance Protection Bureau enforcement action has been initiated since Trump’s pick to run the bureau, Mick Mulvaney, took office. Zero—despite pending investigations against Wells Fargo, Equifax, and others. Once again, this non-enforcement is not surprising, since Trump and Mulvaney are opposed to the entire office—Mulvaney called it “sick” and “sad”—notwithstanding the law (the Consumer Finance Protection Act) it is charged with enforcing.
These and other examples go well beyond the traditional discretion afforded to administrative agencies and reflect an executive branch that is choosing not to enforce an array of laws that it does not like. (To be sure, the Trump administration is still enforcing some laws it doesn’t like—most notably the Affordable Care Act.)
Once again, all this non-enforcement is consistent with the promises Trump made during the 2016 campaign. It’s part of why he was elected. But for this administration to state that it is committed to “enforcing the law” is the height of hypocrisy.
The fact is, discretion is built into the legal system and into our system of government.
On the criminal side, prosecutors have enormous discretion—probably too much discretion—to charge or not charge individuals with various crimes. They strike plea bargains at their discretion, eliminate potential jurors at their discretion, negotiate with defense attorneys at their discretion. This discretion has often led to abuses, but it is necessary for the justice system to function (to the extent it does function). No one writing laws thinks that every person who breaks them will be prosecuted every time; even if the system could somehow accommodate them, that would be totalitarianism, not law.
And on the civil side, Congress routinely delegates to administrators enormous discretion to interpret and enforce the laws they are charged with enforcing. We would be living in a totalitarian hell-hole if every jot and tittle of every law were enforced with “zero tolerance.” Indeed, our lives would look a lot like those caught in the detention centers right now.
The fact is, ever since the Western conception of justice was developed in Ancient Greece and the Near East, it has always meant to be tempered with mercy. “Seek justice, love mercy, and walk humbly with God,” teaches Micah 6:8. Athena, who mythically invents the Greek system of justice in Aeschylus’s Oresteia, tempers the absolutism of the Furies. “Let he who is without sin cast the first stone,” says Jesus in John 8:7, rejecting the legalistic absolutism of the (mythical, not actual) Pharisees.
What is happening today along the U.S.-Mexico border is not “enforcing the law”—it is a deliberate policy choice. If this were the law, the law would be madness.