Trump Can’t Disown His Immigration Policies Now

Ahead of the Iraq War, Secretary of State Colin Powell warned colleagues about how the U.S. would be forced to spend years fixing Iraq if it invaded, citing what he called the “Pottery Barn Rule”: You break it, you own it.

On immigration, something different has happened to President Trump—something more like traditional buyer’s remorse. He aggressively and successively made hardline immigration policy synonymous with himself, but with a growing uproar over the separation of children from parents apprehended crossing the border, he is now wishing to distance himself from the policy.

This is not the first time this has happened. The fight over how to handle “Dreamers,” unauthorized immigrants brought to the U.S. as children, has played out similarly. It’s probably not a coincidence that both of these cases involve children, a peculiar soft spot for an otherwise indifferent president. The problem is that thanks to his eagerness to claim credit for any changes in immigration enforcement, both those he earned and others that preceded him, it is hard for him to create any real separation.

The flareup at hand concerns the handling of families apprehended at the border, and it’s surrounded by a miasma of misinformation. It began in early May, when Attorney General Jeff Sessions traveled to San Diego to announce a new policy of referring every person caught crossing the border illegally for prosecution. Although illegal entry is, self-evidently, a crime, most first-time offenders are not prosecuted.

One side effect of the policy, as the Department of Homeland Security acknowledged at the time, was that more children would be separated from their parents. Under a 1997 legal agreement, children can’t be held in jail, so if their parents are locked up, the children have to go somewhere else. They’re declared unaccompanied minors, then entrusted to the Department of Health and Human Services, which places them with parents if possible, relatives failing that, or other custodial programs if neither parents nor relatives are available.

NBC reported Tuesday that hundreds of children have been held past the legal deadline in facilities that are not equipped for them. News reports have said that the administration “lost” nearly 1,500 who were released, though as The Washington Post explains, that’s a little misleading. It’s more accurate to say HHS lost contact with those children and no longer has custody, not that no one has custody of them. Trump was also happy to point out that photos that showed children in cages at the border were actually from the Obama administration.

Yet in other ways, Trump has tried to soft-pedal the effects of the policy Sessions announced in May, and to distance himself from it. On May 26, he tweeted, “Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border into the U.S.” On Tuesday, he added:

Separating families at the Border is the fault of bad legislation passed by the Democrats. Border Security laws should be changed but the Dems can’t get their act together! Started the Wall.

— Donald J. Trump (@realDonaldTrump) June 5, 2018

These tweets are misleading. There is no law that requires separation per se; the Flores agreement simply says children can’t be incarcerated, and the Trump administration has made a decision to send all parents apprehended to jail, necessitating separation.

One could make an argument for such a separation—for example, one could say that it serves as a deterrent, discouraging parents from bringing their children if they don’t want to be separated. The retiring head of Immigration and Customs Enforcement, however, says deterrence is not the goal of the policy. Sessions has presented this as simply an unfortunate byproduct of enforcing the law. “If you don’t want your child separated, then don’t bring them across the border illegally,” he said.

Trump has not mounted any such defense, though. Instead, he has attacked the policy as the fault of his political opponents. He refers to “bad legislation passed by Democrats,” but although the Flores agreement came into effect in 1997, during the presidency of Democrat Bill Clinton, it’s not a law. Another law, the William Wilberforce Trafficking Victims Protection Reauthorization Act, was signed by President George W. Bush and exempts unaccompanied children from speedy deportation to their home country.

Even as Trump tries to distance himself from the policy, Sessions continues to defend it. In an interview Tuesday with the generally pro-Trump pundit Hugh Hewitt, Sessions said, “We believe every person that enters the country illegally like that should be prosecuted.” He said that most of the children are teenagers, not infants, and that “they are maintained in a very safe environment not by the law-enforcement team at Homeland Security, but put with Health and Human Services. And they are kept close by, and if the person pleads guilty, they would be deported promptly, and they can take their children with them.” He also said, “Every time somebody, Hugh, gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children. We don’t want to do this at all.”

This is just another sign of the distance between Trump and Sessions, though the most visible manifestation has been their conflict over the Russia inquiry. The president once again lambasted Sessions for his recusal from the matter in a Tuesday tweet. In September, I wrote that one reason Sessions was sticking around, despite being repeatedly publicly humiliated, was that as long as he is attorney general, he is able to implement hardline immigration positions.

Those positions include the prosecution of adults crossing the border, as well as the end of the Deferred Action for Childhood Arrivals program. Trump campaigned on ending DACA, but once it came to actually go forward, he started to get cold feet. Sessions made the announcement, and Trump immediately began imploring Congress to find a way to replace DACA, and suggested that he’d extend the program if they didn’t. Later, he nearly struck a deal with Senate Democrats for a DACA replacement, only to be dissuaded by his chief of staff, John Kelly. He then began blaming the end of DACA on Democrats in Congress, which was as disingenuous as his current claim about family separation. (In any event, court rulings have kept DACA in place for now.)

In both the cases of DACA and family separation, Trump is in a quandary. There isn’t much polling on how the public views the family separations, but it’s reasonable to bet that it isn’t popular—just see how Hewitt reacted. Certainly, DACA was extremely popular, even among Republicans, because children brought to the U.S. by their parents are sympathetic figures. The president also doesn’t want to be seen as a bad guy hurting children, and evinces a genuine, if confusing and inconsistent, tenderness in issues involving kids.

Yet in the case of DACA, he chose to end the policy. (He cited constitutional grounds, but it’s hard to take this at face value given his general indifference to rule of law.) In the case of the separations, they flow directly from his attorney general’s directive.

Beyond that, Trump has worked hard to make sure that his political brand is defined by hardline immigration views. It’s an association he cultivated from his campaign launch, with its dark warnings about rapists and criminals coming from Mexico, and running through the “build the wall” chants that were a staple of his rallies. He has been happy to claim credit for any improvements on the border, including boasting of a drop in border crossings. It’s a real drop, though it’s also the continuation of a trend that predates his presidency. He also continues to falsely claim that his wall is under construction, even though Congress specifically barred it. As a result, Trump will have a hard time convincing anyone that it’s actually the Democrats who are hard on immigrants.

Over the weekend, Oregon Senator Jeff Merkley, a Democrat, went to visit a detention center for immigrant children near the Mexican border in Texas. Saying he wanted to check on conditions there, he asked for a tour, but the contractor who runs the facility instead called the police on him. A staffer livestreamed the whole thing. The White House complained that Merkley was engaging in “political grandstanding,” which isn’t wrong, but Trump, who understands the value of a good grandstand, must have had at least a grudging admiration: The stunt was reminiscent of then-candidate Trump’s visit to the border in July 2015.

Merkley’s visit helped to underscore the division between Democrats and the Trump administration on immigration, and shows why it’s hard for Trump to disown the current controversy. The president wanted to be seen as a hardliner on border issues, and he succeeded, but sometimes it’s wise to be careful what one campaigns for.