Law Enforcement and Family Separation

When there is probable cause that a crime has occurred, or in effecting an arrest warrant, law enforcement will attempt to take the subject in question into custody. In making an arrest, officers often find it necessary to do so with family members present. Officers should secure the subject in the safest manner possible while respecting due process; however it is not uncommon for children to be separated from parents in the process. Children will remain separated from parents during periods of confinement. For obvious reasons, children cannot accompany parents to jails, prisons, or, typically, detention facilities. Family separation is thus a commonplace occurrence in societies with a modern law enforcement apparatus. Emotional distress is neither unlikely nor unexpected in these situations and, unfortunately, there is often very little that can be done to avoid it, albeit there are ways to minimize it (which is not the subject of the present essay).

Family separation during deportation proceedings is a common experience in communities with large numbers of immigrants who have entered the country illegally or overstayed their visas. Total deportations by Immigration and Customs Enforcement (ICE) hovered around 400,000 persons annually in each of the first four years of Obama’s presidency. In many of these cases, there were children who were separated from parents while their cases were adjudicated and, in some instances, remained in the United States after their parents were deported, either turned over to relatives or placed in foster care. Obama also stepped up border controls, apprehending and detaining tens of thousands before returning them to the other side of border. Obama deported more immigrants than any other president, which effectively makes him a leader in family separation. In total, 2.5 million immigrants were deported during the Obama presidency. Obama pursued his strategy of certain and swift deportation in order to deter immigrants from Central America. The strategy was effective, sharply reducing the numbers of those attempting to illegally cross the border. There was little opposition to Obama’s policies by Democrats.

What motivated Obama’s aggressive policy of deterrence? There are at least eleven million persons in the United States who are here illegally (probably more) and their presence is associated with significant social injury, including lower wages and displacement for native-born workers and those with valid work visas, overburdened public services, neighborhood disorganization and overcrowding, and, for urban areas, higher levels of crime and violence (for more on this see The Immigration Situation). Citizens and residents who are legally in the country rightly expect the government to enforce immigration laws to protect jobs and public services and keep neighborhoods safe and orderly. Again, if this can be done in a way that minimizes fallout for families, this should be inform policy; but if there is a desire to control immigration—and immigration control makes sense from the standpoint of the interests of labor—then some some mixture of action that includes deportation will be the appropriate federal policy.

Yet we are seeing an attitude on the left, from those who presume to speak for working people, that manufactures depictions of law enforcement as unjustly oppressing a community by detaining and arresting immigrants who are here illegally as if they were members of a minority targeted on the basis of ethnic or racial identity. The comparisons are hardly subtle; analogies are being drawn between law enforcement and the Nazi SS. There are calls from the left for local and state governments to interfere with law enforcement efforts by providing sanctuary for undocumented workers. There are even calls to abolish critical law enforcement agencies, such as Immigration and Customs Enforcement (ICE). To be sure, because the perception that immigration is dominated by Mexicans and other Latin American nationalities, those with brown skin or who speak Spanish are suspected of being illegal immigrants and stopped and harassed. These  reasons do not rise to the level of reasonable suspicion. Discrimination of this sort does not negate the principle of immigration control. 

The social injury caused by illegal immigration requires remedy, and one way to advance just redress of grievances in any domain of criminal violations is to identify those who break the law and hold them accountable. In the case of immigration, the desire to see law enforcement fail in their duty or the call for agencies to be abolished in order to prevent the law from being enforced is tantamount to calling for open borders. Sweden opened its borders in 2015 with terrible results. Tens of thousands entered the country overwhelming Sweden’s capacity to provide for its citizens and causing a sharp increase in poverty, crime, and violence. The proportion of foreign-born in Sweden now exceeds eight percent. Without open borders, the situation is worse in the United States. This nation hasn’t seen the percentage of foreign-born at it current levels (around 14 percent), since the late nineteenth century. Pushed by working class concern over wages and living conditions, the government passed laws tightening our borders in late 19th and early 20th centuries (see The Need for Limits), reducing the percentage of foreign-born persons to five percent by the 1960s, a period of unprecedented prosperity for American workers. Since then, as the proportion of foreign-born has grown again, the material circumstances of working people has deteriorated and the class has become politically disorganized.

Second, family separation is not a special reason to refrain from enforcing the law. If it were, then this would bring enforcement of any criminal statute into question, since those also result in family separation. More than 1.5 million children under age 18 have a parent in state or federal prison. That represents more than two percent of the total US child population. Only a portion of those arrested and convicted are sent to prison, so the number of children separated from parents at other stages of the criminal justice process is much greater. It would be strange to hear a cry in favor of abolishing the city police because taking property offenders into custody causes children to be separated from parents who break the law. Indeed, we don’t hear such cries.

Third, the idea of sanctuary is contrary to the doctrine of federal power central to the logic of Constitution of the United States. Immigration and Customs Enforcement is the law enforcement agency in charge of this domain of criminal activity.  Because of the Supremacy Clause in the US constitution, federal agencies have authority over local and state law enforcement agencies and jurisdictions. Article VI, Paragraph 2 of the US Constitution establishes that federal law supersedes state laws and constitutions. Crucially, this article prohibits states from interfering with the federal government’s exercise of its constitutional powers. A local or state government cannot compromise the safety and security of US citizens by standing in the way of federal law enforcement agencies. We are first citizens of the United States. We depend on the federal government to defend our safety and security however irresponsibly state and local governments may behave. As much as I loath the drug war, federal drug laws supersede the drug laws at the state and local level. 

Finally, opposition to immigration enforcement typically uses rhetoric falsely equating immigrants to members of a minority group in the way that concept is applied to racial or ethnic groups. Immigrants are not a racial or ethnic group but an aggregate made up of many races and ethnicities. Immigrants do not represent a group-in-itself. Immigrants tend to settle in racial and ethnic communities as they seek familiar surroundings. This is as true of Swedes as it is of Mexicans. But an illegal immigrant in either community is subject to detention or arrest on the basis of the violation of the law, including residing in a country he is not legally authorized to reside in. Treating immigrants who are breaking the law as if they constitute a minority group and are being arrested on that basis is like treating those who perpetrate property or violent crimes as if they are members of a protected minority. This is why, as Peter Skerry notes, the traditional civil rights language applied to the black struggle for equality does not apply to immigrants. It is a confusion of categories.

Immigration refers to movement of non-citizens from one state or territory to another state or territory. Illegal immigration is in contravention of a country’s immigration laws. Neither Republicans nor Democrats advocate stopping immigration enforcement. And while a minority of Democrats calls for the abolition of ICE, most Democrats do not. Polls of registered voters find that nearly two-thirds express the view that immigration control is inadequate and eighty percent want secure borders. Some might suppose based on this that a majority of Americans are anti-immigrant, but the desire for immigration control and secure borders is not a reflection of anti-immigrant sentiment. It is not nativist, racist, or xenophobic. It is a recognition of the importance of borders and immigration law to the wellbeing of a nation. At the same time, the United States is the most generous nation in the world with respect to immigration. It is the first choice of immigrants and, because of this, and because of relaxed immigration control, it has the largest proportion of foreign-born persons of any country. Indeed, more progressive countries, such as Sweden, have more restrictive immigration and naturalization policy (such as the principle of sui sanguinis).

It is difficult to develop a sound immigration policy and enforcement strategy when calling for a rational approach to the problem, which will necessarily involve restrictions and deportation, are reflexively smeared as prejudice and discrimination. As Peter Skerry notes, “complaints [about immigration] get branded as anti-immigrant, bigoted and racist, as if there’s no rational basis for them at all. I would submit to you, that there’s often a rational basis for them.” He continues: “there is some reason for the strains that we’ve had, but we don’t want to face up to them because we constantly place them in this racial category and denounce those who are voicing them as racist.” Elsewhere Skerry writes that the attempt to restrict immigration “is invariably out- organized by well-funded and sophisticated immigrant advocates, allied with business and others elites who benefit from on-going high levels of immigration.” Columbia University economist Donald Davis, an immigration advocate, admitted that “there are aspects of discussion in academia that don’t get sort of full view if you come to the wrong conclusion” (“How the Democrats Lost Their Way on Immigration“).

Therein lies the problem. Capitalist elites depend on immigrants as a super-exploitable labor supply to secure higher profits, a strategy that comes at the expense of working people. Elites have spent decades shaping how the public thinks about this issue, and they have recognized that recruiting to their side progressive multiculturalists who are affluent, well-connect, and in a position to shape the narrative for a highly-motivated strata of people who truck in virtue signaling is an effective way of building hegemony in this area. By connecting immigration to the language of civil rights struggles, that is, by recoding immigrants as a racial and ethnic minority (in the same way activists are reframing Islam as a racial category), they have marginalized national proletarian interests for the sake of capitalist advantage.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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