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Leslie Loftis: Obama opens US borders to children. Now he faces four separate crises


The southern border of the US is currently open to children. The reasons vary from the political to the criminal.  President Obama did an end-run around current immigration law in order to force Republicans into accepting an amnesty for illegal immigrants. Violence and strife in Central America has forced parents to send their children north through a willing helper state, Mexico, to the US.

There are elements of truth in both. Without the violence and poverty in Central America and Mexico, there would be no desire to leave home and family for the long and perilous journey. But the children journey now because of the Obama Administration’s 2012 pronouncement that the government would no longer initiate deportation proceedings against young illegal immigrants, which local leaders and smugglers publicised, omitting the five year residency requirement to create a hazy, vague medium for hope of staying in the US effect. Accordingly, the travellers do not try to hide from the US authorities as in the past, but seek to turn themselves in at first opportunity.

The influx is new and we are only beginning to see its ripple effects. There are four aspects of the mass immigration to watch in the coming months.

Humanitarian Crisis

The unofficial amnesty applied to minors. Therefore, the US border is currently sheltering unaccompanied teens and women with young children. US procedure for unaccompanied minor immigrants from everywhere but Canada and Mexico is to hold them for no more than 72 hours and then send them to family or sponsors while they await an immigration hearing. Current staff levels were strained before the surge. Now the authorities cannot keep pace. There are stories of overcrowding, lack of medical care, disease (more on that below) and human trafficking opportunists.

Health Crisis

The quickest action authorities can take to alleviate the overcrowding is transfer the children to families or sponsors. The growing concern making the news asks if the federal government is transferring the children and teens without following medical examination requirements. The sensational claim is that Ebola could break into the US.

Open border supporters think this is a “pants on fire” claim as the children are migrating from Central America and the Ebola outbreak is in Africa. The Ebola concern is overblown, but is hardly crazy. The entire immigration screening system is under stress at the moment. With most personnel diverted to the southern US border and with pressure to speed everyone along, other entry points might have lax screenings as well.

The more likely danger, however, involves all of the other diseases for which US border doctors are supposed to screen. The shelters have already seen outbreaks of tuberculosis, scabies, and chicken pox. The CDC lists 22 Communicable Diseases of Public Health Significance for doctors to screen at the border. Fifteen of those diseases can be prevented by vaccine, but almost two decades of vaccine scaremongering based upon falsified data have lowered Americans’ vaccination rate. When the transferred children start school—public schools are required to accept immigrant children regardless of legal status (Plyler v. Doe)—we might learn exactly how much The Lancet panic compromised our herd immunity. 

Constitutional Crisis

The open immigration surge also provides a few avenues for a federalism crisis in the US. The US Constitution gives the federal government the authority to regulate naturalisation. Congress has passed such laws, but the 2012 executive order is essentially a declaration that the government will not enforce those laws. Nor will the federal government allow the several states to enforce those laws. (That was the Arizona immigration statute issue from 2012 resolved in Arizona v. U.S. )

Obviously the federal refusal to enforce or allow enforcement of immigration law invites conflict with the border-states. A quick glance at a map will explain why Texas and Arizona clash with the federal government over immigration more than other states. The Mexican border states are from left to right: California, Arizona, New Mexico, and Texas.

But this time, other states are taking notice. In the effort to alleviate the problem of overcrowding and defuse federal and state tensions in the border states, the federal authorities are transporting children to other states. They are, however, refusing to provide the state authorities with any information. (A couple of links on shipping immigrants to other states here.)

State authorities won’t have any idea who these kids are until the show up for school. School districts will be expected to educate the children, in Spanish (Lau v. Nichols). While the border states routinely provide English as a second language programs, Ohio or Nebraska don’t. They will need to develop the programs and provide the proper staff. And hospitals must provide medical care. (Despite the popular belief, US hospitals are prohibited from turning away patients without an examination and treatment for emergency conditions.)

Furthermore, our foster care systems have a significant problem with opportunistic fostering, that is, taking kids in to pocket the money the government provides for their care. If the States’ Child Protective Services don’t know with whom the federal government places these children, then they can’t protect them from malicious foster opportunists.

International Law Crisis

This is taken from a 2012 TIME article, “No Deportation for Young ‘Illegals’: Obama’s End Run on Immigration Reform”:

“Implementation will be complicated and any future President could reverse the order. As Napolitano wrote in Friday’s memo, the move “confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.”

Actually, the international law doctrine of legitimate expectations could pose a potential problem for the US. LE is an English administrative law doctrine that has spread to international law through international investment cases.

The very basic reasoning: regardless of the laws on the books, when dealing with international issues, how a nation state enforces its laws is part of the environment, the expectation, of the deal. So if a state has a law but does not enforce that law, then other parties are reasonable in expecting that the law will not be enforced. In this specific case, the executive’s staunch refusal to have immigration laws enforced against minors could give them a credible argument against deportation in the future.

Most public schools in the US start in the last two weeks of August. The news up to now is merely getting started.

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Leslie Loftis
Leslie Loftis
Leslie is a once and future American expat, most recently in London. She is also a lawyer and former local political campaign operative turned freelance writer. She currently lives in her hometown of Houston with her husband and their four children. Find her on twitter @AHLondonTX.

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