Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019

Floor Speech

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Mr. CORNYN. Mr. President, yesterday I spoke briefly about the ongoing situation at the U.S.-Mexican border. It continues to be on my mind and on the minds of many others, including the Presiding Officer, who has offered some very constructive suggestions for how to address this situation.

Just as under the Obama administration in 2014, we have seen a surge of unaccompanied children and families coming across our southern border during the spring and summer months. At the time, President Obama called it a humanitarian crisis, and it truly was and is.

Between October 1 of last year and May 31 of this year, the number of families apprehended at the southwest border rose by 58 percent, compared to the same period a year earlier. Many of these individuals hail from Central America. Some have presented themselves lawfully at ports of entry, but others have tried to enter illegally in more remote, unpopulated areas.

Let me explain. I think Secretary Nielsen tried to make this distinction, but I am not sure it quite penetrated. If someone shows up at a port of entry and asks for asylum, they have not violated our immigration laws, and their claim for asylum needs to be considered by the Border Patrol and by the immigration judge to whom their case is assigned.

If someone tries to enter the country between the ports of entry, they have violated a Federal law. Secretary Nielsen made the point that there is no reason for people legitimately claiming asylum to enter the country illegally when they can come through the ports of entry, much as Cubans have in times past during the existence of the so-called wet foot, dry foot policy that was later abrogated by President Obama.

People with a credible fear of persecution in their home countries may present their claims through normal, well-defined processes. There is no reason for somebody to go to the far reaches of the frontier, the border region--the Wild Wild West, as I like to call it--and try to come in by illicit means. There is simply no reason to do that if you have a legitimate claim for asylum.

Nonetheless, many people opt to go that route anyway. For them, the Trump administration has made a decision to enforce our laws on the books by prosecuting adults in criminal court when they are apprehended crossing our borders illegally. Those are laws passed by Congress, signed by the President of the United States, and the Trump administration has made the logical decision that it is their responsibility to enforce laws that are on the books.

The relevant laws--the ones that make it illegal to cross the border in the first place, a misdemeanor, and it often makes subsequent crossings much more serious--have been on the books for many decades, but they were not always enforced by previous administrations when families were involved. Now, because of a number of Federal court decisions, consent decrees, and statutes, an adult must be separated from a child as the legal process plays its way out.

The reason I say that is we don't want children going to jail with an adult who is being processed for illegally entering the United States. Children are, under current practice, placed in a separate, safe setting. They are not left unattended and fending for themselves against violent criminals who are being detained by regular ICE or Bureau of Prisons facilities.

The relevant legal decisions, settlements, and statutes are important to acknowledge because, as the New York Times stated this past weekend, ``Technically, there is no Trump administration policy stating that illegal border crossers must be separated from their children.''

Instead, there are many variables that are hard to disentangle from one another: the current administration's stepped-up enforcement directives, the so-called Flores agreement, which requires that children be held for no longer than 20 days, a Ninth Circuit opinion that applies Flores to family units, protracted timelines for asylum claims, limited detention facilities, and a division of responsibility among ICE, Health and Human Services, and other agencies.

You can see how this quickly becomes enormously complex because of the overlay of Federal law, consent decrees, court judgments, and other divided responsibilities among Federal agencies.

Underlying this complex array of factors is something pretty uncontroversial, though. I think every Member of this Chamber will agree with the Trump administration that we should never be placing children in prisons or jails with hardened criminals when their parents are being prosecuted.

By the same token, I and many others certainly don't want family members to be separated from one another as a consequence of Department of Homeland Security and administration officials enforcing the laws they are sworn to uphold.

What we are literally being told is that there is a false choice here. You can either enforce the law or unify family members. We are hearing from many of our Democratic colleagues that the administration ought to simply quit enforcing the law, but we all have taken an oath to uphold and defend the Constitution and laws of the United States. Whether you are a legislator, the President of the United States, the Secretary of Homeland Security, the head of Immigration and Customs Enforcement, we have all taken that same oath.

I know U.S. Customs and Border Protection folks, like Manny Padilla and David Higgerson and all the men and women who work under them in the Rio Grande Valley, are trying to do what is required of them by their job; that is, to enforce the law. That is a good thing. We appreciate all they do.

The answer to this current situation is a solution that allows us to both enforce the law and keep families together. They don't have to be mutually exclusive. We have to keep family members together and prevent unnecessary hardship, stress, and outrage. It is not our purpose to cause these children, in particular, the children who have been brought across our border illegally by their parents--we are not trying take it out on them or punish them. We have heard about the consequences when family members are separated. Mental health problems may, for example, follow children all the way to adulthood. We need to be mindful of that risk and work to ensure the children's well-being.

None other than former First Lady Laura Bush wrote this last weekend that she believes we can find a better answer to this current crisis, and I agree with her. In fact, we are off to a pretty good start. Some of my colleagues and I, including the Presiding Officer's staff, are working together to try to come up with a way to keep families unified when they are detained at the border.

I think our goals should be pretty clear and simple: Ensure that families stay together at ICE facilities while their criminal or civil proceedings are ongoing; clarify that the so-called Flores settlement does not apply to children who have crossed the border illegally with their parents; and promote the expedited consideration of detained families by immigration judges so that they are not left in limbo for any longer than is absolutely necessary.

I believe these are the building blocks for a consensus approach, one that every Member--Republican and Democrat alike--could rally behind. Throughout the course of our discussions, though, one point has become increasingly clear. All of us believe that families crossing the border should be kept together. Where we differ is whether we believe we should also enforce our immigration laws.

As I said, it need not be an either-or proposition. We can keep families unified and at the same time remain resolute in enforcing our immigration laws. In fact, Congress wrote them, and it is within our prerogative to change them if we wish, but as long as they are on the books, I believe everyone from the President of the United States on down has a responsibility to enforce laws on the books.

The Trump administration has said that it will not tolerate any violations of those laws or any others and that all offenders will remain on the table for prosecution. There is no reason for anybody to oppose what I have laid out. Either we are a nation of laws, with a government that enforces them, or we are a nation with no laws and open borders.

I urge all of our colleagues on both sides of the aisle to keep talking and keep an open mind. I believe that on a very contentious subject, like immigration, we could literally come together and resolve this situation swiftly and ensure that these children are kept with their families and the law is enforced, according to what the laws are on the books.

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