For weeks now Trump and members of his administration blamed their family separation policy on the Democrats. A lot of people are claiming that lie was revealed yesterday when the president signed an executive order ending the policy. But the truth is, that battle is far from over.
In order to understand what happens next, it is important to know something about an agreement that was reached by the Clinton administration back in 1997 about the treatment of migrant children called the Flores Settlement. It stipulated standards that the government must adhere to when dealing with unaccompanied child migrants.
1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
2. If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
3. The government must implement standards relating to the care and treatment of children in immigration detention.
In 2014, when the Obama administration was attempting to deal with the number of Central American families seeking asylum in the U.S., it began placing them in family detention centers. Immigration advocates challenged that move under Flores. The Ninth Circuit ruled that the Flores settlement covered not just unaccompanied children, but “accompanied” ones as well. It also set a standard that the government couldn’t hold children in detention for more than 20 days.
When the Trump administration blames the Democrats for the family separation policy, it is the Flores settlement that they are referring to. The twisted logic is that they had no option but to separate families because that agreement wouldn’t allow them to detain children for more than 20 days (the Ninth Circuit applied that time limit only to children). Apparently the recent practice of “housing” children while their parents are detained doesn’t technically qualify as “detention.”
As some people are suggesting, Trump’s executive order ending the family separation policy could be a deliberate attempt to start a legal battle over the Flores settlement. That will be triggered when families are detained for more than 20 days and advocates sue based on Flores.
What is important to keep in mind is that, during the discussion about a legislative fix for DACA, the Trump administration put out a document listing all of its demands in exchange for deportation relief for Dreamers. When summarizing those related to child migrants, the administration often talked about closing “loopholes” in the system. One of the items they included as a loophole is, “terminate the Flores Agreement.”
Over the next couple of months, what we will see is that the administration will pressure Congress to pass legislation to terminate Flores—removing the restrictions on how they handle child migrants (both unaccompanied and those with their parents). In the meantime, once the administration has detained families for more than 20 days, we are likely to see court action from the Ninth Circuit. If the ruling is that the administration cannot detain children indefinitely, the response is likely to be that the courts forced them to return to the policy of separating families, which ups the ante on Congress to end Flores legislatively.
There are a couple of things to keep in mind about all of this. The first is that these efforts are all the handiwork of DHS Secretary Nielsen, who was credited with the development of yesterday’s executive order. Of course, she very likely got input from some of the more nativist people in the administration, like John Kelly and Stephen Miller.
Secondly, none of this would even come into play if the administration ended their zero tolerance policy and fear-mongering about so-called “catch and release.” As I recently wrote, there are more effective and efficient alternatives to detention.