Don’t panic about American travelers

A new poll says a staggering 81% of Canadians want to keep the Canada-US border closure renewed at the end of the month.

I can’t imagine why.

This chart should be used in every Joe Biden campaign ad.

We Canadians have flattened the COVID-19 curve, while infections south of the border are skyrocketing. This CNN report explains some of the reasons why:

Until the Americans get their act together, I agree wholeheartedly that the border should remain restricted to entry. That said, I’m detecting a hint of moral panic in the air about Americans who have entered the country.

On social media I’m seeing people call for locking down the border entirely, reporting American licence plates to the police, and many, many variations on an apocryphal story about American tourists visiting a restaurant and gloating to their waitress about how easy it was to lie their way across the border. Some drivers with American (or even out-of-province) licence plates are being harassed.

To be sure, here in Atlantic Canada, a small resurgence of cases have been linked to an American visitor who didn’t self-isolate. Some travelers from Minnesota to Ontario have been charged for not following quarantine rules. Needless to say, anyone coming here who doesn’t follow our rules should be punished for it.

But if there’s a massive surge of Americans coming here and blatantly flouting our rules, it isn’t yet reflected in our case numbers. Maybe next week will be different and we’ll start seeing COVID-19 cases in Canada take off, but so far it looks like most Americans coming here have been following the rules. Or, there just aren’t nearly as many coming here as social media would have you believe.

Part of the reason cases have exploded in Florida is because of complacency. The virus initially didn’t hit the state as hard as people expected, so Floridians let their guard down. (See this blog post, which aged like fine milk. If our cases do skyrocket in the coming months, and the outbreak is linked to Americans, we’ll know for sure that the Damian Penny curse is very real.)

I’m concerned that the same thing is happening here in Nova Scotia. Whenever I go out to stores or the gym, hardly anyone is wearing a mask. If you’re really worried about a new outbreak, covering your face is much more effective than looking for foreign licence plates.

Trump chose border chaos

True to form, the President insists that it wasn’t his idea to separate parents from their young children trying to cross the US-Mexico border.  His little hands are tied by a law put in place by his Democratic predecessor, so he has no choice.

Even here in Canada, Trump has apologists who raise this point in the comment section of almost every Facebook post about it.  Ilya Somin of the Volokh Conspiracy – hardly a Democrat-friendly blog – says it’s nonsense:

…There is no law requiring family separation at the border. And even if there was, that still would not be enough to justify the administration’s cruel policy.

The federal law criminalizing “improper entry” by aliens does not require family separation. The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both. Until the administration’s recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations. The use of civil proceedings generally does not require pretrial detention, and therefore obviates the need to detain either parents or children; some civil defendants were detained, nonetheless, but in facilities where families can stay together. The Trump administration, by contrast, has sometimes even forcibly separated children from migrants who have not violated any law, but instead have legally crossed the border to petition for asylum in the United States.

The Trump administration claims that their policy is required by the 1997 Flores court settlement. But that settlement in no way mandates family separation and detention of children away from their parents. To the contrary, it instructs federal officials to “place each detained minor in the least restrictive setting appropriate” and to release them to the custody of family or guardians “without unnecessary delay.” The settlement also mandates that federal immigration officials must “treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” Detaining children under harsh conditions, separated from their parents, is pretty obviously not “the least restrictive setting” possible, and it most definitely doesn’t qualify as treating children with “dignity, respect and special concern for their particular vulnerability.”

Even if the law did clearly direct criminal prosecution combined with automatic family separation in pretrial detention, it does not follow that the administration had a legal duty to adopt a “zero tolerance” policy that prioritizes prosecution of this particular type of offense. In a world where the vast majority of adult Americans have violated federal criminal law at some point in their lives, and there are so many laws and offenders that prosecutors can only target a small fraction of them, federal officials inevitably have vast discretion in determining which offenses to pursue and to what degree. First-time illegal entry into the United States is a mere misdemeanor carrying a penalty (up to 6 months imprisonment or a small fine) lower than the penalty for possession of small amounts of marijuana (1 year). The relative penalties suggest that federal law considers the latter a more serious offense than the former. Yet not even hard-core drug warriors like Sessions urge the federal government to adopt a “zero tolerance” policy under which we routinely prosecute all small-time marijuana users. In practice, the feds only target a tiny fraction of them. And when they do, they don’t separate their children from them, and detain the children under harsh conditions.

Trump and Sessions are not obligated to do this.  It is a choice.  And while most Americans are appalled by what is being done in their name, his base remains on board:

American voters oppose by 66 percent to 27 percent Team Trump’s policy of separating children and parents when families illegally cross the border into the US, a Quinnipiac University poll released Monday said.

But Republicans overwhelmingly support the policy by 55 percent to 35 percent, the only group to back it.