June 19, 2018 | Reading Time: 4 minutes

Surprise! Crossing the Border Is a Misdemeanor

There's a reason President Trump wants you to believe it's a major crime. The Democrats need to stop helping.

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On one side are Donald Trump’s supporters telling every imaginable lie about what’s happening on the border. On the other side are those armed with furious rebukes and facts: the government is kidnapping children (a fair term) from immigrant parents seeking political asylum with the express purpose of deterring future border crossings.

With both sides digging in, this nightmare could last the summer. By August, according to one report, the government may have interned as many as 30,000 kids.

Pro Publica released yesterday a leaked audio recording of kids wailing for their moms and dads inside a US Customs and Border Protection facility. Listen if you can.

On the same day, acting Immigration and Customs Enforcement Director Thomas Homan said criticizing government agents is offensive. “I think it’s an insult to the brave men and women of the border patrol and ICE to call law enforcement officers Nazis,” he said. “They are simply enforcing laws enacted by Congress.
This morning, the president once again blamed the Democrats for a human rights disaster of his own making. He did more than that. In using the word “infest,” he also compared the children his administration is kidnapping to vermin and disease.  

Here we see two hallmarks of fascism in real time: victimhood and demonization.

White people are the real victims, so anything in their defense is warranted, even if that means emotionally torturing 2-year-old girls. White people are the real victims, because the enemy is a monster, a pest, a plague, malignant and evil. It requires overwhelming force to defeat, even if that means scarring kids for life.  

All of this is evident now, or it should be evident now, but I want to point out that it was evident long before Trump became president. Demonizing immigrants and playing up white victimhood may be why I haven’t seen a strong counterargument to the administration’s constant talk of enforcing the law. Allow me to explain.

Over the weekend, Chris Hayes reported that children were being taken away before parents were prosecuted (a violation with constitutional implications). More importantly, he reported that nearly everyone arrested (91 percent) was being charged with a misdemeanor. All of this was according to internal CBP documents.

Hayes stressed the word “misdemeanor.” I took his emphasis to be significant. Here’s the MSNBC host and author of A Colony in a Nation, an important history and critique of our broken criminal justice system. But even he doesn’t know, or appears not to know, that crossing the border is a mere misdemeanor. It’s the criminal equivalent of reckless driving, public drunkenness or petty assault. That’s it.

That appears to have been a surprise to Hayes. It was to me when I first discovered it. And it may surprise you too. That’s due to the Republican Party, and now President Trump, having characterized the entire debate over immigration as strictly a matter of law and order. So much so in fact that US Senator Ted Cruz of Texas once accused former President Barack Obama of “unprecedented lawlessness.”

Of the administration’s “nonenforcement” of immigration law, Cruz said: “In more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal laws and asking others to do the same.”

This theme of lawlessness was a Republican refrain throughout Obama’s presidency. We heard it over and over and over and over (and over and over and over). We heard about “lawlessness,” so much in fact that the Democrats, painfully aware of their reputation among conservatives as soft on crime, did what they could to avoid justifying the slander, usually by throwing millions of dollars at border security.

But in conceding to Republican hysteria over Obama’s “lawlessness,” the Democrats did something they now need to stop doing: they rewarded the Republican Party’s fascist tendencies. In conceding to their point about lawlessness, they underscored its sense of victimhood and demonization—to the point where misdemeanor offenses now justify, to many Republicans, inflicting pain and suffering on innocents.

For this reason the Democrats need to mount not only a moral offensive against this crime against humanity. They need to mount a constitutional offensive, one that objects to the implementation of cruel and unusual punishments. With this, they can meet the Republicans’ “lawlessness” with accusations of government tyranny.

But they can do more. If the Democrats can make a constitutional case, they can widen the scope of conflict to include any immigrant who crossed the border once and stayed. The government is not only separating children from parents at the border. It is separating immigrants from their American children, their property and, in some cases, their citizenship. Why? Because of a misdemeanor committed years ago.

That’s not fair. The Constitution’s Eighth Amendment ensures that punishment fits the crime. Does a misdemeanor fit being deprived of life, liberty and property? I can’t imagine any truly informed person saying it does. But as long as the Democrats cede that ground, even truly informed people might end up agreeing with Trump.

Bonus feature!

New Haven native Alex Wise is host of Sea Change Radio, a syndicated program about environmental politics on the west coast. We talked last week about the upcoming midterm elections, President Trump and the differing natures of the parties.

John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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