Trump Caves On Family Separation Policy, Sort Of
President Trump has reversed the family separation policy and replaced it with a family detention policy. This is likely to lead to Court challenges.
President Trump has signed an Executive Order meant to address the family separation policy that has been the source of widespread condemnation not only domestically, but also from religious sources such as the National Conference Of Catholic Bishops as well as internationally from figures such as British Prime Minister Theresa May and Pope Francis. The new order, though, doesn’t completely rescind the policy that the Administration put in place some six weeks ago and leaves a longer-term solution to Congress:
President Trump caved to enormous political pressure on Wednesday and signed an executive order that ends the separation of families by indefinitely detaining parents and children together at the border.
“We’re going to have strong, very strong borders but we are going to keep the families together,” Mr. Trump said as he signed the order at the Resolute Desk in the Oval Office. “I didn’t like the sight or the feeling of families being separated.”
The order said that officials will continue to criminally prosecute everyone who crosses the border illegally, but will seek to find or build facilities that can hold families — parents and children together — instead of separating them while their legal cases are considered by the courts.
Mr. Trump’s executive order directed the government’s lawyers to ask for a modification of an existing 1997 consent decree, known as the Flores settlement, that currently prohibits the federal government from keeping children in immigration detention — even if they are with their parents — for more than 20 days.
But it is unclear whether the court will agree to that request. If not, the president is likely to face an immediate legal challenge from immigration activists on behalf of families that are detained in makeshift facilities.
Stories of children being taken from their parents and images of teenagers in cage-like detention facilities have exploded into a full-blown political crisis for Mr. Trump and Republican lawmakers, who are desperate for a response to critics who have called the practice “inhumane” and “evil.”
Mr. Trump has for weeks refused to simply end his government’s “zero tolerance” policy that led to the separation of more than 2,300 children from their parents, saying that the alternative would be to fling open the nation’s borders and allow immigrants who cross the border illegally to remain in the country.
But the president, furious about the pummeling he has taken in recent days, has been casting about for an escape from the crisis, people familiar with his thinking said. Officials at the Department of Homeland Security are preparing the executive order that is designed to end the family separations.
More from The Washington Post:
President Trump abruptly reversed course Wednesday, signing an executive order ending family separations at the U.S.-Mexico border after a public uproar over the impact of his administration’s “zero tolerance” immigration policy.
The plan would keep families together in federal custody while awaiting prosecution for illegal border crossings, potentially violating a 1997 court settlement limiting the duration of child detentions.
“So we’re going to have strong, very strong borders, but we’re going to keep the families together,” Trump said as he signed the order in the Oval Office. ”I didn’t like the sight or the feeling of families being separated.”
Trump had repeatedly defended his immigration crackdown, including forcibly separating migrant children from their parents after they crossed the border. But images of young children in tears, housed in metal cages, set off an international outcry.
For days, Trump and his top administration officials were unwilling to unilaterally reverse the separation policy, insisting that congressional action was required.
On Tuesday, the Department of Homeland Security said 2,342 children have been separated from their parents since last month.
One administration official said Trump’s order would end separations by keeping families together in immigration detention centers.
U.S. Immigration and Customs Enforcement (ICE) operates two large detention centers for families in Texas and a smaller one in Pennsylvania, but their combined capacity is about 3,000 beds.
As of mid-June, the three centers were nearly full, meaning ICE would potentially need to place children in its much larger network of immigration jails for adults.
You can read the Executive Order that the President signed today at the link.
Right off the bat, it’s important to note that this Executive Order does not appear to be aimed at ending the “zero tolerance” policy that Attorney General Jeff Sessions announced six weeks ago. That policy will continue to be implemented, meaning that nearly everyone attempting to cross the border illegally will be arrested and held at an appropriate Federal facility. What is changing, though, is that it will no longer be the policy of the Administration to separate families when they arrive at the border together or those who have attempted to cross the border illegally. Instead, such families will apparently be held in some form of “family friendly” detention facility. It’s not entirely clear what that means or what kind of conditions these families will be kept in. For example, if it means that children will be kept in adult detention facilities it seems clear to me that this would be entirely unacceptable. However, if it means that they would be kept in the same sort of family-friendly facilities that have been utilized in the past then that would at least be more acceptable than the status quo. It’s also unclear if some portion of these people will be released, with appropriate monitoring, and told to appear for a hearing at a later date.
This Executive Order also leaves unresolved questions regarding the status of children who have already been separated from their parents, which have been estimated to number as high as 2,000 as of early this week. Specifically, we will need answers to those questions and to the question of when the parents and children who have been separated will be reunited. In many cases, the Federal Government has been slow to release information about what is happening to these children and in some cases even refused to allow access to those facilities to either reporters or elected state and Federal officials, There have also been reports, albeit unverified in most cases, that some children have been sent to facilities as far away from the border as Michigan and New York, although it’s unclear if these are children who came to the border unaccompanied or those who were separated from their parents. In either case, the status of these children, and those who were separated from their parents at the border needs to be resolved sooner rather than later.
One potential problem with this Executive Order is the fact that it is likely to run afoul of the so-called “Flores Settlement” that set parameters on the government’s ability to keep children in custody and sets restrictions on the conditions under which they can be held. That ruling was further limited by subsequent litigation based on the original case, including a 2016 ruling by the Ninth Circuit Court of Appeals that limited the ability of the Federal Government to keep children in custody in any type of detention facility for longer than twenty days. Practically speaking, it is unlikely that any of the cases that the government is currently dealing with involving families can possibly be resolved in that period of time It was because of these court rulings that prior Administrations had chosen to release parents with children with an order that they appear at a later date, although in recent years it has been the practice that the parents would be fitted with ankle bracelets containing GPS locators to ensure their appearance at trial. It’s worth noting, though, that reporting has indicated that the vast majority of people who went through this “catch and release” process did, in fact, appear for their court dates, especially those claiming asylum as a defense to deportation. Because of this, it seems certain that there will be litigation regarding the length and conditions of detention of these families in the near future
While President Trump and his supporters will no doubt try to spin this differently, it’s fairly clear that this amounts to a total back down on the part of the Administration. In the two weeks or so since this story has become front page news, the President and his supporters have insisted that this is an issue that only Congress can solve, which in and of itself proves that Trump was intending to use these children as a bargaining chip to get what he wants out of a broader immigration deal. Additionally, the Administration was falsely claiming that Democrats were responsible for this policy and that it was their refusal to act in Congress that was responsible for the policy that the Trump Administration itself had put into place. All of this was untrue, of course, but that didn’t stop the President and his supporters from repeating these false claims for the better part of a week.
On the whole, I would characterize this as a positive development albeit one that doesn’t go nearly as far as it should. The so-called “zero tolerance” policy will remain in effect, for example, and that means that families will be kept detained for an undetermined period of time while their status is adjudicated pursuant to applicable law. Additionally, as I noted above there is likely to be litigation over the new policy, especially if it means that parents and children are kept in custody for extended periods of time. All that being said, this is a positive development and it clearly would not have happened were it not for the massive public pressure that built up over the past week or more and the fact that members of the President’s own party on Capitol Hill were beginning to rebel and threatening to pass legislation that would have gone further than this Executive Order does. In other words, this is a good development but let’s not forget the fact that this was a crisis of the President’s own creation and that he only caved because the heat what becoming too hot to bear.
Photo via The New York Times