The following article appeared in Powerline on October 27th
By Paul Mirengoff
In response to the caravan of potential immigrants that’s making its way towards the U.S.-Mexico border, President Trump has called on the U.S. military. According to reports, soldiers, perhaps as many as 1,000 of them, are being sent to provide support to ICE in dealing with members of the caravan when they reach the border.
Sending in the military sends the right signal, I think. Perhaps it will deter some would-be illegal immigrants, thus shrinking the size of the caravan (it is already said to be shrinking in Mexico). But I’m uncertain as to whether calling on troops is an adequate response to the contemplated mini-invasion.
I take it that the mini-invasion is designed to get more illegal immigrants into the country. Once here, they will apply for asylum. Few will get it, but in the meantime the asylum seekers will be released pending the processing of their application. They can then hang out illegally in the U.S. indefinitely.
If the military were deployed to prevent entry by caravan members into the U.S., the process I’ve just described could be nipped in the bud. But it doesn’t seem like this is the task being assigned. You also have to wonder how, if it came to this, a battle between our soldiers and a bedraggled crowd including women and children would look to the American public.
The Trump administration seems to doubt that troops are the answer. Thus, it reportedly is considering other options, notably not permitting caravan members to seek asylum in the U.S. The Washington Post tells us:
Under U.S. law, foreign nationals fleeing persecution have the right to apply for asylum once they reach American soil, but the executive order under consideration would suspend that provision and bar Central Americans as a matter of national security, according to those familiar with the proposal.
Such an executive order would resemble the travel bans Trump ordered at the outset of his administration for individuals from certain countries, mostly in the Middle East. Like those orders, this one would face immediate challenge in court.
It might prove more difficult than the travel bans to defend in court on national security grounds (and the travel bans were not an easy lift). The current process that the caravan’s backers seek to exploit is ridiculous and, over time, destructive. But it may be hard to convince judges that the processing of, say, 3,000 to 5,000 more immigrants who are exploiting the system creates a national security emergency.
The best response to the caravan would be to keep its members on the other side of our border. I’m just not sure how, in practice, we would accomplish this, and thus whether the objective is realistic.
UPDATE: A very knowledgeable reader writes:
Asylum seekers in the US can be detained pending adjudication of their claim. If they show they have a credible fear of persecution they are entitled to be released under a 2009 exec order, but that could likely be modified (although it’s not clear it would have to be as it’s not clear how many Caravan members could make the credible fear sowing- and if they do maybe they should be considered for release).
There likely are complications with detaining families with kids because of a pre-existing 9th circuit consent decree.