Tuesday, June 2, 2020
This Article analyzes the powerful handshake between public discourse and law that created the 2018 family separation policy. It undertakes a discursive analysis to examine how the pairing of public discourse with law employed both the criminalization of parents and the concept of parens patriae to make family separation not just an unfortunate collateral consequence of border enforcement, but a way in which an administrative agency became the substitute parent to the separated child. The justifications offered for separating children from parents brought to the foreground particular legal frameworks—crimmigration and parens patriae—that facilitated a family separation policy, and pushed formerly robust legal frameworks—asylum or discretionary forbearance from exclusion—out of sight and out of reach. In symbiosis with these threads of discourse, changes in law and legal policy removed humanitarian grounds for entry and erased family relationships in racialized and gendered ways. The analysis in the Article holds promise beyond family separation for greater understanding of how this marriage of discourse and law can reframe whole areas of law into or out of public view, centering some, like crimmigration, and rendering others, like asylum, wholly invisible.