Bending to intense public and political pressure to do something other than defer to Congress, the president signed an executive order today ending his administration’s practice of separating families at the border while adults are being prosecuted for illegal entry. But in many respects Trump is just kicking the can down the road.
It’s reasonably clear that most of those who called upon Trump to act wanted him simply to rescind the “zero tolerance” policy announced in May by the attorney general that created this whole crisis. He is very explicitly not doing that.
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.
Instead, the new order commands that children be incarcerated right along with their parents and instructs federal agencies to work with the Department of Homeland Security to make available or build facilities for detaining all these families. And since perpetual detention of kids violates a 1997 federal court consent decree (the so-called Flores Settlement) limiting such detentions — in practice, to 20 days — the order tells the Justice Department to ask the courts to change the rules.
This approach is aimed at letting Trump have his nativist cake and eat it, too, while disclaiming responsibility for kids in cages, alone or with their parents. In the likely event that the courts will continue to place restrictions on the length and conditions of detention for children, Trump can continue to claim this is all Congress’s doing and that only Congress can fix the problem — preferably through a comprehensive immigration bill that gives the president his border wall and his big changes in legal immigration policies. In effect, Trump has switched from holding children hostage to congressional action to holding entire families hostage instead.
Worse yet, it appears the administration isn’t going to do anything about reuniting the families it has already separated:
So in the very narrowest sense Trump is complying with demands that he end (but not mend!) family separations at the border. He is nonetheless creating the equally fraught problem of large-scale family detentions at the border, and ignoring the more obvious option of abandoning the whole “zero tolerance” posture until such time as the system can be overhauled. The president’s allies will try to sell us on his compassion for kids and his extreme flexibility in modifying his administration’s procedures without, of course, giving up its devotion to The Law. The real question is whether the sights and sounds from the border that turned the cruel Trump-Sessions policy into a political disaster will get that much better now that children are no longer suffering on their own.