Should the government enforce the law at all costs? What if strict enforcement causes unjust outcomes? What if it punishes the innocent? And what if the law itself violates higher moral commands?
President Trump’s “zero tolerance” immigration policy resulting in separating over 2,300 children from their families generates these questions. Following outrage from all sides, Trump issued an executive order on June 21 to end the separation of children. The order’s effectiveness is unknown and the moral quandaries remain.
Why are the children being separated?
The US Justice Department started a policy of prosecuting illegal border crossers in May 2018. Attorney General Jeff Sessions announced “if you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”
The prosecutions are aimed at deterring illegal immigration. There are 11 million illegal immigrants in the US. In addition, these migrants have 4.5 million children who are American citizens. Immigration reform had eluded previous presidents and Trump was elected on a pledge to be tough on the border. Since his election, Trump instituted travel bans for certain Muslim countries, reduced rights under certain visas, and increased raids, prosecutions, and deportations.
Zero-tolerance is from that script. Previously, those who crossed the border illegally to seek asylum were rarely prosecuted. Now, all crossers are being referred and prosecuted. When families cross illegally, adults are detained and prosecuted whereas children are being transferred into the custody of Health and Human Services. Previously, the families would have been together under immigration detention and processed by an immigration judge – not prosecuted as criminals in federal court. The separation of children crystallised public condemnation from all sides of the political spectrum and the president was forced to backtrack.
Enforce the law or follow a higher command?
The government rejected criticism claiming that they are merely enforcing the law and have no choice. Trump blamed Congress claiming that injustices against children can be ended if members reform the law. Senior officials have even referenced religious texts to buttress the government’s position. Attorney General Sessions quoted the bible: “Illegal entry into the United States is a crime – as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order.” Others counter that the Bible demands the opposite. For instance, Leviticus 19:33-34 states, “When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt.” Similarly, Deuteronomy 10:18-19, “He … loves the foreigner residing among you, giving them food and clothing. And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.” They also reference Hebrews 13:1-2: “…show hospitality to strangers, for by doing that some have entertained angels…,” and Mark 12:30-31, “’Love your neighbour as yourself.’ No other commandment is greater than these.” No less an authority than the Pope has weighed in criticising Trump’s policies and saying, “particular concern must be shown for migrant children and their families.”
Hostility to Migrants Not Just a US Phenomenon
To be clear, Trump is not alone in pursuing anti-immigration policies. European public opinion is hostile to immigrants in general, and refugees in particular, and a variety of politicians ranging from Viktor Orban to Theresa May have responded in kind.
For instance, a Pew Research poll in September 2016 showed that 76% of Hungarians, 71% of Poles, and over 60% of Germans, Dutch, and Italians thought refugees would increase domestic terrorism. A median of 50% in ten countries thought refugees would be a burden on their country. Refugees from Syria and Iraq are seen as a threat: UK (52%), Italy (65%), Hungary and Greece (69%), and Poland (73%). Less than one-in-four supported the view that diversity makes their country a better place to live in Greece (10%), Italy (18%), Hungary (17%), Poland (14%), Netherlands (17%), and Germany (26%). These are dreadful figures. In contrast, 58% of Americans believed in diversity. Evidently, anti-immigrant policies make for good politics. And politicians are responding. The Hungarian parliament passed the “Stop Soros” law on June 20th to criminalise anyone who ‘facilitates’ illegal immigration. Austria and Italy have also expressed support for an anti-immigration axis and Germany is embroiled in turmoil on its own approach to refugees. The UK has had a ‘hostile environment’ for immigrants dating back to May’s tenure as home secretary.
What’s the solution to the migration problem?
Despite the Pope’s exhortation to resist “populism,” politicians have to be sensitive to their voters’ preferences. And as long as nativist sentiments run high, it is naïve to expect significant change in the anti-migrant policies in the US or EU. Equally, there is no transformational leader on the horizon to harness religious teachings, moral values, and ethical principles toward changing public attitudes.
So, we have to wring solutions to a complex problem amidst deep public hostility. First, it must be accepted that there are practical problems with significant migrant flows so solutions cannot be based on encouraging movement. Refugees frequently lack employment and cultural skills making them dependent on state support. It is unreasonable to expect native populations to support migrants permanently with their tax contributions. Moreover, keeping refugees in a permanent state of dependence is contrary to their welfare; there are adverse impacts on their health and mental wellbeing.
Therefore, the only sure solution is a massive collective effort to stabilize conflicts in the biggest refugee source countries. Western governments could make a big dent by investing resources to end or manage conflicts in Syria, Iraq, Afghanistan, and Myanmar.
Coevally, provision of safe shelters, food, and healthcare in specially carved out zones in these countries could obviate the need for refugees to seek asylum in the EU or US. Most refugees seek shelter in their immediate neighbourhood. If they are provided secure facilities closer to home there will be a reduced need to travel to Western countries – often that journey is at mortal risk. And they are better able to return and contribute to their communities’ revival post-conflict. This suggests that collective action to provide basic safe facilities closer to the source could be a cheaper alternative. Such investments would also generate valuable economic activities in deprived areas providing secondary benefits. Finally, short term visas, sponsorship of refugees abroad, and offshore facilities have to be part of the solution mix. If native populations are unwilling to have refugees in their midst, they might see value in paying to keep refugees safe closer to the source countries.
Whilst not ideal, these options are superior to denying our collective humanitarian obligations toward our fellow humans under the false pretext of safety. Europe and the US should at least do the minimum – otherwise they inflict further punishments on innocent people and generate horror as evidenced by the caging of children in the US.