In order for a latae sententiae penalty to have canonical effects - to, for example, bar a Catholic from Holy Communion - the penalty has to be imposed or declared by a competent authority.
It seems unlikely that Bishop Weisenburger had in mind a system whereby individual bishops name individual Catholics for punishment.
Bishop Weisenburger was right to say that, in the vast majority of case, penalties are imposed medicinally by the Church, for the reform of the offender and for their own good. But for that reason, the Church requires that offenders be warned and called to reform before penalties are imposed. Exactly how Catholics "involved" in problematic immigration enforcement could be effectively warned is hard to see. Would ICE officers, for example, be placed in a position where their bishops told them to quit their jobs or be prepared to refuse to uphold the law?
Indeed, when we try to apply the concept of canonical sanctions to those involved in immigration enforcement, matters get even more complicated.
Assume, for example, that Bishop Weisenburger had a narrow and specific application in mind: that individual law enforcement officers physically separating families should be subject to canonical penalties.
To what act would a canonical penalty be attached? Bishop Weisenburger referenced existing canonical penalties for "life issues," but these penalties are only incurred through very specific acts - the taking of human life through abortion or homicide.
If the act of physically removing a child from their parents on behalf of the government were to become the basis for a canonical penalty, would the penalty apply in all circumstances, or only on a case-by-case basis? If it applied to all cases, this would seem to negate the possibility that in some cases, even if rarely, the child's welfare might clearly be otherwise at risk. If it is to be applied selectively, who would be the judge of when, and how, and what information would be used to make that judgment?
Those establishing such a norm would need to discern whether there are legitimate circumstances in which children could be separated from their parents, and carefully discern the implications of directing Catholics to disobey their legal obligations.
Bishop Weisenburger called rightfully for a "prophetic statement" against a public iniquity. The problem with his canonical suggestion is that prophetic witness of the Church does not naturally lend itself to the language of canon law, still less penal law.
Speaking just before Bishop Weisenburger, Bishop Oscar Cantú of Las Cruces spoke about the need for "public visible gestures," noting specific successes in closing abortion clinics through "constant and peaceful" means, including prayer vigils. He proposed that similar vigils outside federal courts hearing asylum and immigration cases might be suitable. Both bishops referenced Cardinal Joseph Tobin of Newark's proposal that bishops visit the detention centers where children are held, to draw public attention, and hopefully censure, to them.
Those suggestions seem more constructive, plausible, and practical. They also have the benefit of targeting the policies and processes against which the bishops want to speak, rather than targeting individual Catholics. Federal policy and the administration's efforts should be the focus of the Church's efforts, at least for the time being.
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Bishop Weisenburger referred to himself as the sort of bishop who usually shies away from using the "sledgehammer" of canonical penalties. This is a common sentiment among bishops. But in truth, penal law is not a sledgehammer, or some other instrument of blunt force. Penal law is, as the bishop later said, very strong medicine indeed. Strong medicine must be used carefully, with a clear diagnosis of the problem, its causes, and a plan for treatment. We are not yet there on the border.
Ed Condon is a canon lawyer and worked as Catholic News Agency's Washington DC editor until December 2020.