The Trump administration is now arguing that it already has the right to indefinitely detain migrant families thanks to a recent court ruling which barred separating them. The Trump administration has been saying that it will try to change a 31-year old consent decree, called the Flores agreement, which bars the federal government from detaining children for longer than 20 days and thus prevents the indefinite detention of families. On Friday in Los Angeles, however, Justice Department lawyers filed a legal notice arguing that Tuesday’s injunction by a federal judge barring the separation of migrant families cancels out the Flores agreement. The Trump administration is therefore arguing that it has no choice but to detain the families together for as long as it takes to adjudicate their immigration cases — a process which can take months or years. It is also clearly trying to take advantage of the legal gray area introduced by the new injunction.
Two weeks ago, after already separating about 2,500 migrant children from their parents at the southern U.S. border, President Trump caved to public pressure and stopped the widely condemned practice, announcing that revised version of his administration’s “zero tolerance” policy would be to detain migrant families together instead. The indefinite detention of children was in violation of the Flores agreement, however, so the administration has been working to overcome that considerable hurdle ever since (in addition to some legislative efforts among House Republicans).
It’s far from clear if the Justice Department’s argument stands any chance in court. As the Washington Post has pointed out, it’s possible that the judge who currently oversees the Flores agreement, Dolly M. Gee, will agree with the DOJ argument, but it’s also possible she won’t and insist on a different solution, including the arguably superior practice of releasing migrants into the U.S. with monitoring bracelets.
Any longer-term detention of migrant families will also undoubtedly lead to new lawsuits from civil rights groups and immigrant advocates. The Justice Department’s new strategy was already challenged in court by immigration rights advocates late Friday night, as well. They insisted, among other things, that the government would then be able to force families to stay in unlicensed detention facilities, since mandated the use of licensed, state-run facilities is another protection under the Flores agreement.
Whatever happens, the new legal strategy indicates that the Trump administration is continuing to exhaust all legal and moral acrobatics to make sure that migrants and their children are treated with as little tolerance as possible. It’s less clear how many legal moves they have left — assuming they cannot get Congress to pass legislation addressing the issue — but when it comes to targeting immigrants, the Trump administration can always be expected to go the extra draconian mile. Indeed, the Justice Department is reportedly considering a new regulation which would block most Central American migrants from being able to win asylum in the first place.