WASHINGTON — It was one of the final pieces of legislation signed into law by President George W. Bush, a measure that passed without controversy, along with a pension bill and another one calling for national parks to be commemorated on quarters.
“This is a piece of legislation we’re very proud to sign,” a White House spokesman, Tony Fratto, told reporters on Dec. 23, 2008, as the president put his pen to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, named for a 19th-century British abolitionist. “This program has been very effective around the world in trying to stop trafficking in persons.”
Now the legislation, enacted quietly during the transition to the Obama administration, is at the root of the potentially calamitous flow of unaccompanied minors to the nation’s southern border.
Originally pushed by a bipartisan coalition of lawmakers as well as by evangelical groups to combat sex trafficking, the bill gave substantial new protections to children entering the country alone who were not from Mexico or Canada by prohibiting them from being quickly sent back to their country of origin.
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Instead, it required that they be given an opportunity to appear at an immigration hearing and consult with an advocate, and it recommended that they have access to counsel. It also required that they be turned over to the care of the Department of Health and Human Services, and the agency was directed to place the minor “in the least restrictive setting that is in the best interest of the child” and to explore reuniting those children with family members.
The Obama administration says the law is partly responsible for tying its hands in dealing with the current influx of children. Officials have suggested that the White House might seek flexibility in the law’s requirements when it asks Congress to provide emergency funds to contend with the latest immigration crisis, a request that could come as early as Tuesday. About 52,000 minors without their parents have been caught at the Southwest border since October.
“Giving the secretary of homeland security additional authority and discretion that he can use to confront that situation more efficiently, making sure that we are acknowledging the humanitarian issues that are at stake while also enforcing the law, is a priority,” Josh Earnest, the White House press secretary, said Monday. “It’s the priority of this administration, and if you listen to the public comments of Democrats and Republicans, it sounds like it’s a bipartisan priority.”
Sen. Dianne Feinstein, D-Calif., who helped write the measure, said the White House does not need new power to act.
“That law already provides the administration with flexibility to accelerate the judicial process in times of crisis,” she said. “The administration should use that flexibility to speed up the system while still treating these children humanely, with compassion and respect.”
On Capitol Hill, Democrats said they expected that the administration’s initial request for border money would not push for changes in the trafficking law but that the White House would try to work with relevant congressional committees to eventually win revisions.
Democrats have shown reluctance to endorse narrow immigration-law changes after House Republicans balked at a much more sweeping overhaul and seem hesitant to tinker too much with the William Wilberforce Act.
In a recent letter to Speaker John Boehner, R-Ohio, Rep. Nancy Pelosi of California, the Democratic leader, said Congress must ensure that the provisions of the trafficking victims act, “which passed the House and Senate unanimously and was also signed into law by President Bush, are fully enforced, so that due process is provided to unaccompanied children and the safety and well-being of unaccompanied children is protected.”
Republicans, who are calling for changes that would make it easier to send them back, blame President Obama for the surge of children at the border, saying he provided a lure by instituting a program that deferred deportations for some immigrants who entered the nation illegally as children.
They say the effort to point to the Bush-era law is meant to deflect attention from the administration and make both parties culpable.
Rep. Jeff Fortenberry, R-Neb., a chief backer of the original bill, said multiple factors contributed to the crisis, including “exploitation of our laws, the ungoverned space in Central America, as well as the desperate poverty faced by those deciding to cross.”
“With all these factors in mind, it’s hard to think that today’s situation at the border can be directly attributed to a law that’s been in effect now for six years,” Fortenberry said.
What many can agree on is that the Wilberforce law was not enacted with the idea of dealing with the current flow of tens of thousands of unaccompanied minors or providing an incentive for children to reach the border.
“It is classic unintended consequences,” said Marc R. Rosenblum, deputy director of the U.S. Immigration Policy Program at the Migration Policy Institute. “This was certainly not what was envisioned.”
Given the tense partisanship that now surrounds nearly every aspect of border policy, it is hard to imagine that a bill making such substantive changes could breeze through Congress. But the trafficking measure did so in the Bush administration’s last weeks, and it did so with bipartisan backing without so much as a recorded vote in the Senate.
Advocates saw it as a breakthrough on sex trafficking after Congress had already scuttled an earlier attempt at broad immigration reform despite the strong backing of Bush.
Just two House Republicans — Reps. Jeff Flake of Arizona and Paul Broun of Georgia — opposed the measure when it first passed the House in 2007, but it went through Congress without opposition and with little notice in the postelection session of 2008.
Aides to Flake, now a senator, said he did not foresee the current problems but was more concerned about holding the line on federal spending at the time. He now backs revising the law.