Who’s Really to Blame at the Border: Activist judges, perverse incentives, and the law of unintended? consequences

The backstory to the current border crisis via Heather Mac Donald writing in City Journal: "the current distress and hysteria is the fault of illegal aliens and their enablers in the courts":

So it was a ruse. The hysteria over the separation of illegal-alien asylum-seekers from their children (or their purported children) was in large part pretextual. The real target of rage was the Trump administration’s policy of prosecuting all illegal border-crossers for the federal misdemeanor of illegal entry....

.... The extraordinarily complex thicket of interpolated rules and rights that govern U.S. immigration policy (the result of decades of nonstop litigation by the immigration bar) contains a series of judicial mandates that defeated even the Obama administration’s tepid efforts to bring some semblance of lawfulness to the border. A long-running class-action lawsuit in the U.S. Ninth Circuit Court of Appeals, originally styled Flores v. Reno, has held that alien minors cannot be confined by the government for longer than 20 days. This 20-day cap contributed to the flood of Central American child-toting asylum seekers that picked up steam during President Obama’s second term [my bolds]. Asylum petitions typically take months, if not years, to adjudicate, given the long backlog of such cases in the immigration courts. If an adult crosses the border alone and utters the magic asylum words—a fear of persecution in his home country—he could in theory be held in detention until his asylum claim was adjudicated. If, however, he brings a child with him and makes an asylum pitch, he puts the government to a choice: detain the adult separately until his claim is heard and release the child after 20 days, or release both adult and child together.

The Obama administration usually chose the second option. Word coursed through Mexico and Central America that taking a child across the border was a get-out-of-jail-free card that would exempt its holder from both criminal prosecution and detention. This child-release lever, coupled with Obama’s announcement in 2012 that he would grant amnesty to the so-called Dreamers, meant that Obama soon had his own family border crisis on his hands. In 2014, 70,000 adult-child units and 70,000 unaccompanied minors were apprehended illegally crossing into the U.S. The administration tried building large family detention centers to hold the children and their accompanying adults, but the same Flores decree that has bedeviled the Trump White House stymied that effort. In 2015, a federal trial judge, Holly Gee, herself appointed by Obama and the very definition of an activist jurist, vastly expanded the scope of the original decree and ordered the administration to release the detained minors. The Department of Homeland Security warned that ending family detention would trigger another border surge. Judge Gee dismissed this concern as “fear-mongering,” according to the Associated Press. 

Obeying the law... is something that must never be demanded of politically correct victims. If lawbreaking carries negative consequences, the fault lies with the legal system, not with an individual’s decision to break the law in the first place.... 

The “progressive” solution to these dilemmas is to confer an immediate benefit on the alleged victim that will alleviate the problem in the short term, perverse incentives be damned. Illegal aliens with children must be exempt from immigration rules. The likelihood that such a policy will encourage more illegal aliens to come is out of sight, out of mind (if not covertly viewed as an affirmative good).... 

Strangely, after Trump issued his recent executive order, a few media voices tentatively raised the problem of the unintended consequences of purportedly humane rules. CNN anchor John Berman asked Schiff on Thursday morning if exempting illegal aliens with children from detention “incentivized” such illegal crossings. Schiff ducked the query: “Well, it’s not a simple question as whether somebody has a child or not.” But the problem of perverse incentives will not go away. America’s loss of sovereignty over its borders and the incursion of millions of barely literate campesinos and their progeny is the result of years of victim-favoring policies that ignore personal agency and court the consequences.

City Journal