The Trump administration, caught between laws preventing the detention of illegal immigrant children and an outcry over family separation, is going forward with new rules that will override a court settlement from the 1990s.
The administration announced on Thursday that it was not backing down on a zero-tolerance policy that would herald a return to the days of catch and release, i.e., not enforcing our border laws at all, essentially. Instead, a new rule would opt this administration out of the so-called Flores Settlement Agreement, which stipulates that children held by immigration officials must be released as soon as feasibly possible. In practice, this has typically been read as a 20-day limit.
The problem arises, of course, when these immigrant arrivals come into the country with their parents (or, at least, people posing as their parents). If the administration is set on keeping families together, the Flores Agreement forbids them from keeping ANY of the detained immigrants in custody for more than 20 days. If they separate the parents from the children…well, you saw how well that went over. So the only remaining alternative is to go back to catch and release, which President Trump is determined not to do.
Well, you could also build a wall and stop this crap before it happens, but Congress doesn’t seem too keen on ponying up the money.
In the immediate aftermath of the controversy over family separations, the Trump administration sought to have the courts overturn Flores and restore the United States’ right to detain illegal minors as long as necessary. A California District Court judge denied the motion, however, accusing the executive branch of trying to “shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.” So much for judges staying above the political fray.
Activist groups on the left will no doubt challenge Trump’s authority to make the new rule, though it seems they are fully authorized to do so under a modification made to Flores during the Bush administration. Under this latter agreement, the original court settlement expires 45 days after a federal regulation has been made implementing it. Now that ICE has issued the order, the Trump administration can simply wait out the 45-day limit and then either repeal the rule or interpret it how the president sees fit.
This won’t necessarily be a permanent, fix-all reparation to the problem, but it will at least steal back some power the courts have taken from the Executive Branch. It will, for a time, allow the Trump administration to properly enforce our border laws.
At least, until some liberal activist judge comes along and puts a stop to it.