On Wednesday, President Trump signed an executive order awkwardly titled, “Affording Congress an Opportunity to Address Family Separation.” The order is his attempt to solve the humanitarian crisis at the U.S./Mexico border created by his administration’s “zero tolerance” policy, which treated everybody who crosses without documentation as criminals and incarcerates them, separating the adults from the children in the process. Some families seeking asylum have been similarly split, and Trump’s executive order tries to address this problem when it says, “It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” On the surface, that sounds promising, but the executive order is at best a half-measure.
Keeping families together still involves detaining children, which is deeply problematic, but detaining the family as a unit is better than detaining the children alone. Unfortunately, it is not retroactive, so the more than 2,000 children who have already been separated will remain apart from their parents. (The Guardian documented the lengths that non-government agencies have to go to try to find the parents of detained children because the government doesn’t keep records of the family members’ locations.) It is also not clear when the executive order will go into effect since new facilities have to be found. That means the number of detained children will almost certainly rise.
Trump arrived at his solution knowing that it has a major legal obstacle. The 1997 consent decree known as the Flores settlement stated that “the government has been obligated to release children from immigration detention to relatives or, if none can be found, to a licensed program within about three to five days. If that is impossible, they must be held in the ‘least restrictive’ setting appropriate to their age and needs,” The New York Times wrote. When President Obama tried to deal with an influx of undocumented immigrant families during his second term by detaining them together, a judge ruled that Flores covered children who were with their families as well as those who were unaccompanied. Now, Judge Dolly Gee, who oversees the consent decree, will have to decide how this situation is any different from the one Obama faced. If she rules that the solution is not “consistent with law,” it’s not clear what happens next to the detained children. As Slate.com’s Mark Joseph Stern writes:
Flores strongly favors family reunification. Whenever feasible, minors must be transferred to a parent, legal guardian, or adult relative (such as an aunt or grandparent). Otherwise, they may be transferred to “an adult individual or entity” designated by their parent or guardian, or to “a licensed program willing to accept legal custody.”
This makes it very possible that children will be released to relatives or foster programs while the parents remain in detention, again separating the family.
The “zero tolerance” policy that Attorney General Jeff Sessions announced last April created the problem. It treats every undocumented border crossing as a crime for which the immigrant must remain in custody until his or her court date. Immigration courts have been backed up for years, and zero tolerance has made the backlog worse. Now, one court in Arizona processes detainees in batches to move through its docket more expeditiously. It, like the policy of separating children, is intended as a deterrent, and seen by the administration as crucial to border security. History shows that it is not crucial to deal with those who cross illegally, though. Studies show that despite the fears to the contrary of the Trump Administration, undocumented immigrants who were apprehended when crossing the border and subsequently released show up for their court dates. In effect, the Trump administration created a problem in an effort to appear tough on immigration, and have worked out an equally problematic solution to deal with it.
One of the troubling features of the executive order and the fiasco it tries to solve is the inability of the administration to accept its role in any of the problems. The adage, “The buck stops here” has been amended to read, “The buck stops anywhere but here.” Policy was created and implemented without congressional input or oversight because the changes were within the president’s power to make, but the executive order blames others for the situation. It reads, “ It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.” Similarly, the administration has arrived at a solution that flies in the face of the Flores consent decree, but according to Gene Hamilton, counselor for Sessions, “It’s on Judge Gee. Are we going to be able to detain alien families together or are we not?” He further asserted that her rulings “put this executive branch into an untenable position.”
The problem could easily be solved by rescinding the zero tolerance policy, but the text of the executive order makes that sound unlikely:
It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise.
All of that get-tough language means that the best hope for a real solution lies in congressional action. There are plans set to move forward, but will be surprising if Congress genuinely addresses immigration issues with midterm elections approaching and immigration emerging as an issue that Republicans plan to run on. It’s also not clear that President Trump would sign any legislation that would weaken his tough guy stance on the southern border.
For those who want to help, here is another list of organizations that are working to provide legal aid for the families and children being detained. They can all use your help, and look for opportunities to make your voice heard—demonstrations, protests, and online initiatives. It’s hard to read the executive order as anything more than an effort to get the heat off the White House. We need to keep the heat on.