Congress Can’t Even Do This One Thing

Left and right agreed that migrant children shouldn’t be torn away from their parents. But they couldn’t be bothered to pass a law.

a migrant mother and child
John Moore / Getty

The moment was practically unrecognizable in modern politics. Just four years ago, Democrats and Republicans in Congress seemed to agree on something. And not on an innocuous topic like fixing roads and bridges, no—they came together on one of the most controversial subjects in the history of American political debate: immigration.

When the American public learned definitively in June 2018 that government officials were forcibly taking children away from their parents as part of a misguided scheme to discourage migration across the southern border, legislators started clamoring to take action. They were responding to the sounds of toddlers crying out for their parents, who, by then, were likely hundreds of miles away, lost in a labyrinthine federal detention system. Suddenly, some of the fiercest conservatives in Congress, including Senators Ted Cruz and John Cornyn of Texas and members of the House Freedom Caucus, introduced a flurry of bills calling for the same thing that leading Democrats were demanding: to immediately end the use of family separation as an enforcement tactic, and to outlaw it for good.

In years of covering immigration, I had never seen this kind of bipartisan agreement. Casey Higgins, who was serving at the time as the top immigration-policy staffer for Paul Ryan, the Republican speaker of the House, said party lines that seemed to have been etched in stone suddenly faded. “All the politics and things like that went out the window,” she told me recently, “because any parent who was hearing about this or reading about this was sick.”

So confident were these legislators in their position that Cornyn told reporters Republican staffers were finalizing a single bill that they planned to “hotline” to the president’s desk within days. Hotlining is one of the fastest ways to get a bill signed into law. It allows the full Senate to vote on a piece of legislation without any floor debate, but is only rarely invoked, because it requires unanimous consent. Cornyn felt sure he had it.

I think you know where this is going.

​​Cornyn and his colleagues’ enthusiasm dimmed a day later, when President Donald Trump gave in to public pressure, signing an executive order halting separations. (Actually, the order was written so quickly that it was inscrutable, but immigration-enforcement authorities knew what Trump meant for it to say, so they mostly complied.) One week later, a broader Republican-led immigration bill that also outlawed family separation ​​(replacing it with prolonged family detention, which Democrats loathe) failed spectacularly in the House. Republicans had gone back to disagreeing not only with Democrats, but also with one another.

Talk of family separation “pretty much disappeared after that,” Higgins said, even though Trump began backing away from his own executive order almost immediately after signing it. He pushed to revive the practice throughout his administration’s final 18 months. But Republicans didn’t want to challenge the president, Higgins said, “and nobody wanted to talk about it anymore in an election year.”

Democrats kept the issue alive a little while longer, emphasizing it during the 2020 campaign cycle. But their interest, too, seemed to sputter and die within Joe Biden’s first year in office. Jerry Nadler, the House judiciary chair, did not even reintroduce his own bill to outlaw separations in the current Congress. A separate bill that was introduced to provide monetary support and legal residency for the separated families has not been voted on, nor have most Democratic leaders signed on as co-sponsors, which would signal that it’s a priority.

“We’ve still got a long way to go to prevent this from happening again,” Joaquin Castro, the Texas congressman who introduced the House bill to provide recourse to separated families, told me recently, sounding exasperated. “There has been no accountability for the people in the Department of Homeland Security and other federal agencies who orchestrated this inhumanity.”

To say that Congress has failed to fulfill its duties when it comes to addressing immigration in general, and family separation specifically, is a profound understatement. The last major overhaul of immigration policy was more than 25 years ago. And although nearly every aspect of the system is troubled, the issue has become so toxic in Washington that large legislative compromises are considered too risky to vote for. They rarely make it out of a single chamber, because they are packed with concessions from both sides, which legislators fear will prompt backlash from voters. (The last reform bill “gave everyone a reason to vote no, rather than to vote yes” was a line I heard frequently from both parties in my reporting.) But just as sticky today are narrow bills addressing issues that most Americans agree on.

The dysfunction is not unique to any one group. Conservative Republicans are so caught up in gamesmanship that they refuse to agree to measures that they support, unless the proposal somehow feels like a loss to the other side. Progressives can become so overwhelmed by all the things they want to change about the immigration system that they overlook opportunities for compromises on matters like family separation, almost literally throwing the baby out with the bathwater. Moderate Democrats, who are arguably the biggest roadblocks to immigration reform in a Congress that is only barely under their party’s control, perform outrage when it serves them politically, but bail out of the conversation at the slightest hint of headwinds. (And no one has heard from moderate Republicans in a while.)

Kudos are in order for anyone who has invested enough time learning the intricacies of our immigration system to be able to guide legislators through negotiations. It’s a complicated issue, and few can be bothered to take it on. But asking those experts to try to explain why negotiations have stalled again and again, including on matters that most members of Congress and the public agree on, can be maddening.

For example, Casey Higgins, the Ryan aide, who spent many late nights during the Trump administration on the phone with Stephen Miller, Trump’s top immigration adviser, told me that when family separation intruded into the larger immigration debate, “it didn’t make things easier to have this thing that everyone in theory agreed on; it actually just made it harder.”

Sorry, what? I asked her to explain.

Higgins said that talking about family separation made Republicans uncomfortable—the administration had gone too far, jeopardizing the party’s credibility with voters. “Obviously,” she said, no one wanted children to be used as “pawns in our political debate.”

This response would have seemed reasonable had she not just finished telling me about what she called the “Chinese-food caucus.” Early in his presidency, Trump had met with Democratic leaders Chuck Schumer and Nancy Pelosi over crispy beef and sticky rice in the White House residence. He signaled that he was open to supporting a path to permanent legal status for DACA recipients, or Dreamers. But Republicans in Congress were incensed at the threat of a compromise. Trump had been “ready to give up the sword,” Higgins told me, invoking the long-held Republican position to agree to legislation for Dreamers only if Democrats gave up something significant in return. This strategy, of course, expressly makes children pawns in our political debate, except that Dreamers have been shuffled back and forth across this deranged chess board for so long that they have become adults with children of their own, who are now also caught up in the game.

Higgins told me that for years, she held Immigration 101 sessions with Republican lawmakers ahead of negotiating sessions where she explained basic concepts such as DACA and green cards—something that many Democrats no doubt required as well. But lately, such sessions have become less relevant to her party. Eric Cantor, the former Virginia congressman who was ousted in 2014 by a challenger from his right after negotiating with Democrats on an immigration-reform bill, is far from the only Republican to have learned that good-faith attempts to clean up the system can be career-threatening.

In fact, Higgins said, stagnation on immigration reform has come to be viewed by some in her party as a good thing. “If you go to any Republican on the stump right now, one of the first topics out of their mouth is immigration,” she said. They’re “criticizing the Democrats for wanting to just legalize a bunch of people or free them into the country illegally. It’s a rule-of-law issue, and Republicans can capitalize on that … There’s a perception sometimes that immigrants are getting ahead and being handed something and Americans are struggling to get by.” (Democrats, she said, benefit from the status quo too, because it allows them to malign Republicans as heartless.)

Democrats can and do often appear similarly cynical. In interviews with several Democratic legislators and staffers who have worked on immigration issues, none seemed to have registered the moment in 2018 when the two parties were united against family separation. When I asked about the bills to outlaw the practice that were offered by Republicans at the time, they said they didn’t even remember them. There must, they seemed to assume, have been something wrong with the proposals.

Not even immigration advocacy groups agree about the best way to prevent future family separations. They are focused on a long list of reforms that they consider overdue, a list that seemed to grow exponentially during the Trump era. “Within the advocacy community, family separation was seen as outrageous and extreme but a symptom of a larger problem,” Jennifer Nagda, the policy director at the Young Center for Immigrant Children’s Rights, told me. The dream of imposing all the changes they would like to see may have been nurtured at the expense of achieving one of them.

Some advocates, such as Conchita Cruz, an executive director of the Asylum Seeker Advocacy Project, think the solution lies not in legislation but in the courts. Dozens of families who were separated during the Trump administration have filed federal lawsuits seeking damages. If successful, their cases could dissuade a future administration from using the tactic again, Cruz said.

But Biden’s Justice Department has been fighting those cases fiercely. It dropped out of settlement negotiations late last year and recently asked a judge to require parents who have sued to undergo psychological examinations. “This is what the Trump administration would be doing,” Cruz said. “I think they’re trying to aggressively discourage families from filing lawsuits.”

Moderate Democrats appear to have given up on the issue altogether. “There was a whole lot of excitement around fixing Trump’s evil policies,” Nagda told me, “and less about fixing some of the bigger problems in the system.” Lately, moderate Democrats have actually been arguing quietly for the Biden administration to keep in place Trump-era restrictions on asylum that are based on the mistaken theory that we can simply enforce our way to a closed border. Staffers for progressive members of Congress who say they have tried agitating with the offices of Democratic leadership on the issue of family separation told me they were getting no response, or hearing back that the party doesn’t have the votes.

“In political speak, that means ‘I don’t want to take this vote, because I think that this issue is unpopular with some of the people that I represent who are going to vote in the next election, and I don’t want to have to deal with that,’” Castro told me. “Some of them feel as though they would support a piece of legislation if they knew that it was actually going to get enacted. They don’t want to spend political capital for a bill if it’s just going to pass the House. Then there’s no benefit to anybody in legislation and there’s a downside in the election.”

Almost all of those who remain committed to the issue are far to the left. In June 2018, Jeff Merkley, a senator from Oregon, traveled to a Texas facility where some separated children were being detained. “One particular cage held a group of young boys, and they were assembled by height from the shortest to the tallest. The shortest was just knee-high to a grasshopper, maybe in the vicinity of 4 years old,” he told me. “I was just kind of stunned, like, My God. America is doing this?” Merkley let out a despairing laugh—one that I have become accustomed to hearing while reporting on this issue.

When I asked him what was holding up congressional action, he pointed to Senate rules that effectively require every single Democrat to be on board for a bill to leave that chamber. He also called out the glut of misinformation about immigration in the news and on social media. But Democrats have not come up with effective messaging to counteract falsehoods that have become mainstream, such as the “Great Replacement” theory and its euphemistic variants. Higgins told me that in town-hall meetings, it would take Ryan, her former boss, eight minutes to explain his platform on immigration, “while someone like Tucker Carlson can go out and say Republicans are trying to replace your jobs with immigrant labor and boom, done.”

Castro said he thought the best hope of movement on immigration—whether it be part of a comprehensive package or a one-off bill on family separation—would be in Congress’s lame-duck session after the midterms. But that doesn’t seem likely. Although that timing might minimize the risks of voting for reform, he acknowledged that it won’t do anything about the lack of enthusiasm in his own party. “I’ll just cut to the chase,” he said, “Republicans are horrible on this issue. I don’t think they care much what happened to these kids or their parents. But there’s also a set of Democrats who are scared of the issue of immigration, including giving legal status to kids that were separated from their parents viciously. They’re scared of other people’s racism and xenophobia at the ballot box.”

The Biden administration recently touted that it had reunited 500 families who were separated under Trump, painstaking work that grows harder with the passage of time. But it acknowledged that about 700 remain separated. And more than four years after American government officials took their children away, more than 130 parents have still not even been located.

Congressional staffers in both parties told me they did not think a future president would be brazen enough to reinstate family separation after the public outcry in 2018. But my reporting suggests that they are being gravely naive. This is not especially hard to prove.

Recently, I phoned in to a conference call with Ken Cuccinelli, the former attorney general of Virginia who rose within Trump’s immigration-enforcement ranks to serve as his acting deputy Homeland Security secretary. Cuccinelli held the call to announce, as the invitation put it, his “plan for border states to DECLARE an INVASION” and “propose a formal U.S. declaration of war on Mexican cartels.”

I asked if he expected a future Trump administration to try to prosecute parents traveling with their children across the border, including to seek asylum, which would mean separating families again. “Well, yes,” he replied without hesitation, adding that so would any “other Republican in the future, or any president who was serious about border protection.”

With 2024 groping closer and Republican hopefuls shaping their preliminary campaigns in Trump’s image, the time to try to stop family separation from happening again may soon run out. And that’s to say nothing of the potential return to office of Trump himself. Castro told me that, in his view, Trump stood for white nationalism, QAnon, and family separation. “So if the American people reelected him to become president, he will take that as an affirmation that all of those things were not only okay, but appreciated. And that, to him and to the whole Republican Party, will be a green light to do it again—and do worse.”