Last week I was commended by someone because my commentaries stuck to the Family Action Council of Tennessee’s focus on state laws and policies directly affecting the nature of marriage, the integrity of the family unit, the sanctity of life, and religious liberty. I was also chastised by someone for not speaking to federal “asylum” policies that separate “infants and children” from their parents. Today, I will speak to a federal issue—immigration—while trying to stay in my lane.
As it turns out, my critic wasn’t interested in asylum but in the enforcement of our immigration laws, a wholly different issue. What he was really interested in were my views on how President Trump is handling the prosecution of an adult who is here illegally when that adult’s child is also here.
The Problem of Intersecting Jurisdictional Claims
While that is still a federal issue, I will go outside my lane of state policy because this federal issue provides an opportunity to speak to a broader issue with which I do have to work—the intersection of different legitimate jurisdictional authorities and competing justice claims.
I believe it is within a nation’s God-given jurisdictional authority to protect its borders. I also believe it is within the God-given jurisdictional authority of parents to raise and nurture their child according to their value system.
Of course, there can be situations that militate against an unlimited exercise of that authority by either jurisdictional authority, and as in the case of immigration policy, those two jurisdictions can collide.
The Issue Not Debated
There is probably much I don’t know about our immigration policy and its enforcement, but here is what I’ve not seen debated: What’s the difference between separating a parent and child when it is the result of enforcing one type of law—immigration law—and separating them when it’s the result of enforcing other types of laws, such as those against murder, theft, or assault?
Is it any less heart-breaking or any less of an injustice to the child in the case of the latter than the former?
So, how do we, or even can we, distinguish between border laws and these other types of criminal laws so that we would be correct to say that an injustice is done to the child when separated by criminal laws regarding borders but no injustice is done to the child when separated by these other types of criminal laws? The adult, however, is not being done an injustice in either situation; in both situations, the adult has broken the law.
But in answering this question, we also have to realize that all laws establish a kind of border, a border that protects the law-abiding from the non-law abiding.
We do an injustice to the law-abiding citizen when those who do not abide by the law are allowed to do so with impunity. So why is it an injustice to an innocent victim of assault if the violation of assault laws are ignored, but not an injustice to those who abide by the rigor of the immigration laws if violators of those laws are not prosecuted?
These are hard questions on which few want to engage. I suspect it is because no one wants to be viewed as hard-hearted or against the family and the integrity of the family unit. But sometimes we fail to see that our choices in these hard matters are not just about whether to enforce the law or disregard existing law.
As I understand it, the separation complained of here is caused by the fact that federal law does not allow minors to be incarcerated with adults pending the outcome of the adult’s prosecution, and for good reason. But those reasons can give way if there are other ways of handling the situation that allow for just distinctions.
For example, we allow some people to be paroled but require monitoring bracelets that allow them to be tracked and reapprehended if necessary. Could that not work here pending trial so that the adult could stay with his or her child?
We also incarcerate DUI offenders in very low security group-type facilities (not differentiated cells), which most likely segregate minor offenders from adults. Given the number of immigration enforcement actions, could not the facilities be outfitted to hold only adults with their minor children pending trial? We already have facilities that separate different types of adult offenders, so why could this not be one more type?
Both of these solutions do no injustice to the incarcerated adult who has no child here vis-à-vis the adult who does have a child here. The freedom of the adults in all these situations is in some manner restricted, but the presence of the child provides a justifiable basis for distinguishing between the ways in which those restrictions are handled.
The Bottom Line
The issue is probably more complicated than I’ve pictured it, and maybe my suggestions won’t work. After all, this isn’t my area of expertise. But here is my point: When either/or thinking leads only to outcomes that appear to produce an injustice—disparate treatment without identifiable distinctions between those in similarly situated circumstances—then it just may mean we need to think (and pray) more.
Neither party in Congress has done enough thinking on this issue for way too long, other than to think how its non-resolution can be used to score political points against the other.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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