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A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This is in contrast to the previous policy, under which only some people caught crossing the border illegally would be criminally prosecuted, and the rest just went through civil deportation proceedings. This has resulted in large numbers of children being separated from their parents, because if a parent is criminally prosecuted, then they have to stay in federal prison awaiting trial, and that means parent and child will be separated, because kids can't be in federal prison. See this article.

Now a couple of bills have been proposed to try to end this separation of children from parents. Democratic Senator Dianne Feinstein has introduced the Keep Families Together Act, and Republican Senator Ted Cruz has proposed the Protect Kids and Parents Act (not yet formally introduced). My question, would either the Feinstein bill or the Cruz bill repeal the Trump Administration's zero tolerance policy? Or would the Trump administration still be able to criminally prosecute every single person caught crossing the border illegally even if the Feinstein bill or Cruz bill were enacted?

And if the Feinstein bill and Cruz bill don't stop it, then how do they prevent children from being separated from parents? Is the idea that the enactment of one of these bills would persuade President Trump to voluntarily stop the zero tolerance policy, or would President Trump be compelled to stop it?

  • As a note/update, a recent federal ruling has ordained that families can no longer be separated at the border (and that those already separated must be reunited within 14-30 days depending on age of child), which will likely affect how legislation dealing with this issue approaches it – Gramatik Jun 27 '18 at 20:30
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Feinstein

Dianne Feinstein's Keep Families Together Act simply bans family separation. It's unclear what happens with the zero-tolerance policy. It might have any of the following impacts:

  1. Because the child can't be separated from the parent, the parent can't be prosecuted for illegal border crossing. This is because other laws require that a child be separated from a parent in order to process the parent in the criminal system. This could end the zero-tolerance policy absent some clever workaround.

  2. Much like #1, only no parent (not just border crossers) can be arrested for any crime within a hundred miles of the border. This is consistent with the plain text of the bill. This ends the zero-tolerance policy and quite a bit of other criminal prosecution.

  3. In order to avoid #2, the courts create enough exceptions that the bill has no impact. Criminal prosecution law requiring separation would supersede this bill and it would be held not to apply to parents who are criminally prosecuted. In this case, it would have no effect on the zero-tolerance policy.

  4. Absent a criminal prosecution, after twenty days, both parents and children might have to be released as a result of the Flores consent decree. Because the child has to be released and the parents must stay with the child. This wouldn't affect the zero-tolerance policy legally.

  5. The Flores consent decree would no longer be in force, superseded by this legislation. Parents and children could be detained together for an indefinite period. This would not affect the zero-tolerance policy legally but might offer an alternative that the administration finds more palatable.

The Feinstein bill is not specific about which of these would occur. It just bans separations except under a few circumstances and lets the chips fall where they may. It might have the effect of repealing the zero-tolerance policy. Or it might not. I believe that the intent is #1 and #4. We'd have to see how it plays out in court. Reading it, #2 is a serious possibility. Parents of children could commit federal crimes with impunity within a hundred miles of the border. They could never be prosecuted, as this law would prohibit the attendant separation from their children.

Cruz

Without the text of the proposed bill, we can't examine it for possible side effects in the same way. The general idea, from The Texas Tribune is

  • Doubling the number of federal immigration judges, from roughly 375 to 750.
  • Authorizing new temporary shelters with accommodations to keep families together.
  • Mandating that immigrant families be kept together, absent aggravated criminal conduct or threat of harm to children.
  • Providing for expedited processing and review of asylum cases so that — within 14 days — those who meet the legal standards will be granted asylum and those who do not will be immediately returned to their home countries.

As I don't believe that crossing a border without a visa meets the legal standard of aggravated criminal conduct, this (as described) could have the effect of banning the zero-tolerance policy. It's essentially the same as #1 in the Feinstein bill in that regard. As described it would be harder to produce the other four Feinstein possibilities. Not impossible, as we don't have the text of the bill to examine for issues, but as described it would be more difficult. Of course, the typical descriptions of the Feinstein bill don't make obvious its flaws.

This mostly works by making the immigration system work the way that people think it would. It sets a specific process for deporting families as a unit. However, it is described as actually banning a necessary part of the zero-tolerance policy.

Summary

The Feinstein bill is rather vague and could be subject to odd legal interpretation. It may or may not end the zero-tolerance policy and the Flores consent decree. It may or may not have unintended side effects.

The description of the Cruz bill is better than the actuality of the Feinstein bill, but we'd have to see how it is actually written and potentially enforced by the courts.

It's also unclear how Donald Trump would receive either bill. He's spoken out against adding more immigration judges, which is part of the Cruz bill. And the Feinstein bill doesn't give him any of the enforcement advantages that he seeks. My guess would be that he would veto the Feinstein bill without significant changes. He might be willing to sign the Cruz bill. He hasn't addressed the bill as a whole yet.

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    "The description of the Cruz bill is better than the actuality of the Feinstein bill, but we'd have to see how it is actually written and potentially enforced by the courts." This is your opinion. The dissenting opinion would note that Cruz's bill would mandate family detention centers, and those inside the detention center would only have access to legal services that serve the center. Combined with the 14 day deadline to hear a case, it becomes impossible for a lawyer to prepare a robust legal case for an asylum seeker. Hence, this is Cruz-like ploy to reject legitimate asylum seekers. – C. Helling Jun 20 '18 at 14:59
  • Why do you link to a news article about the bills rather than the actual text of the proposed bill itself? Here's the KFTA text. Most of your points on it seem unsupported by the actual text. The prevention of separation, for example, is explicitly stated as... – zibadawa timmy Jun 20 '18 at 21:33
  • "An agency may not remove a child from a parent or legal guardian solely for the policy goal of deterring individuals from migrating to the United States or for the policy goal of promoting compliance with civil immigration laws. " which means they can still be arrested and separated for other reasons. – zibadawa timmy Jun 20 '18 at 21:34
  • I do link to the text. See the link "text of the bill". I link to the news article as well because in my experience, most people do not want to read the text of the bill. – Brythan Jun 21 '18 at 0:58
  • So if somebody with a kid robs a bank within 100 miles of the border, what then? – user21424 Jun 27 '18 at 14:36

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