Holding Migrant Children on Military Bases:  What You Need to Know

The Washington Post recently reported that the Trump administration is making preparations to hold migrant children on U.S. military bases while their parents are pending trial for illegal entry into the United States. Meanwhile, Attorney General Jeff Sessions has committed to prosecute all illegal border crossers, stating that federal prosecutors will “take on as many of those cases as humanly possible until we get to 100 percent.”  In a speech last week, Attorney General Sessions stated “If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law.”  By one count, more than 100,000 people who attempted to cross the border were arrested in the past two months (though questions remain about DHS’ data and its reporting of illegal border crossings). And since President Trump took office, arrests of illegal immigrants across the United States have increased by 40-percent.

While the Trump Administration has been careful to state that a decision has yet been made about housing the migrant children on military bases and the DoD has not received formal tasking, choosing this path would continue the trend of widening the military’s role in immigration enforcement more broadly. It follows the announcement made last month that state National Guard units would assist DHS and Customs and Border Patrol (CBP) in immigration enforcement.

Enter the Department of Health and Human Services (HHS), the federal agency responsible for providing minors with foster care, to the immigration discussion. HHS personnel are in the process of making site visits to three military bases in Texas and one base in Little Rock, Arkansas. If the plan to house children is implemented, complex interagency coordination will undoubtedly be required between the Departments of Defense (DoD), Homeland Security (DHS), Justice (DOJ), and HHS.

While President Obama briefly used military bases to house migrant children, that was in response to a different problem: the steep increase in unaccompanied minor children crossing the border. In response to that crisis, President Obama in 2014 established emergency housing at military bases in Texas, California, and Oklahoma for children immigrating illegally into the United States (predominately from Honduras, Guatemala, and El Salvador).  But in that instance, the vast majority of these children were entering the United States without parents or relatives.  Many of these children were fleeing violence in Central American countries. Thankfully, the 2014 migration crisis ended fairly quickly after 7,000 children were temporarily placed on military bases. Unlike 2014, the Trump administration’s proposed plan is not in response to an external crisis – it is a response to a planned increase in prosecution and the corresponding uptick in children separated from their families.

While there is nothing per se illegal about housing children on military installations, questions remain, four of which are highlighted below:

First, how long will the children be held and what will they be doing on the military base?  HHS estimates that children in their custody normally spend an average of 45 days in their care. But in reality, this time may well be lengthier than anticipated as the children’s parents are tried in federal court for illegally entry into the United States. And many families will be seeking asylum status in the United States – another lengthy and drawn-out legal process.

Under the prospective plan, children will apparently be taken into HHS custody on military bases while their parents are awaiting criminal prosecution. While this is not entirely different from a situation where a parent is facing criminal charges in the U.S., this will greatly strain HHS and the demand for temporary foster care. Studies indicate that such separations can traumatize children, particularly migrant children who are already in a vulnerable state far away from home.  Under federal law, a conviction for illegal entry carries a maximum penalty of six months in custody for first-time crossers and two years for repeat offenses. While the prosecutor has broad discretion in seeking a lengthy sentence, there is little reason to believe that the government will be lenient during the sentencing phase in light of recent pronouncements from the administration on how serious they take such offenses.

Related questions include:  Where, exactly, will the children be placed on base? If the parents are tried and convicted, will the children placed in temporary foster care or continue to reside on a military base?  Will they go to school? What will happen, exactly, to their children in the interim? As a general matter, military bases are focused on training and operational readiness for future military deployments and are ill-suited for the long-term health and welfare of an enormous influx of children.

Second, what will be the military’s exact role?  As a general matter, the military is prohibited from taking an active part in law enforcement and detention oversight due to the Posse Comitatus Act (PCA). The PCA does restrict the federal Army and Air Force (not National Guard) from “executing the laws” – i.e. taking a more active role in law enforcement that has been construed to mean “regulatory, proscriptive, or compulsory in nature.”  Under Obama, the military played a minimal role, merely facilitating HHS access to the military bases.  Will that role be expanded at all or in any way be different under the new HHS plan?

Third, will Congress engage on this issue? Within the executive branch, the Department of Homeland Security must reimburse the Department of Defense for any money spent. Congress has the “power of the purse” and an important role in authorizing such a reimbursement and appropriating money for this new plan. Will Congress authorize the reimbursement, appropriate additional money, or otherwise go on record with their position in light of the executive branch’s actions?

Fourth, will the courts step in? The ACLU has already filed a class action lawsuit brought on behalf of adult parents alleging that the Trump Administration violated their constitutional due process rights in separating their children. As immigration enforcement is stepped up even further and prosecutions increase, look for additional constitutional challenges to be brought, potentially by migrant children.

This proposed plan clearly demonstrates that the President is committed to willing to use all the tools – military or otherwise – within his authority to clamp down on illegal immigration. But separating children from their parents comes at a stunning cost. That cost is borne disproportionately by children. The American Academy of Pediatrics has already denounced such separations because of possible long-lasting emotional and physical stress on the children. While the President clearly has the authority and responsibility to safeguard our borders, we should always strive to find ways to stem crises that lead to the mass flows of illegal immigration as well as to ameliorate any potential harm to children. Close coordination with the Mexican government proved particularly effective in 2014 in ending that immigration crisis. We should pursue all options when the health and welfare of a child is at stake.

In sum, despite President Trump’s reported frustration with Homeland Security Secretary, Kirstjen Nielson, and her purported inability to stop the flow of illegal immigration into the United States, the administration’s unspoken pledge to make 2018, “The Year of Immigration Enforcement” is having wide-ranging effects for migrant families and their children.   While the Trump administration’s proposal may well prove to be an effective mechanism to deter illegal immigration, we can surely do better. And we should always minimize the traumatic effects on children, who are caught in the middle of an increasingly harsh immigration enforcement strategy.

Photo by John Moore/Getty Images 

About the Author(s)

Mark Nevitt

Sharswood Fellow at the University of Pennsylvania Law School and former commander in the Navy, serving as a tactical jet aviator and attorney in the Judge Advocate General’s Corps for 20 years. Follow him on Twitter (@marknevitt).