I’ve seen a lot of people on Twitter use the analogy that Trump is getting credit for putting out a fire he started. This is actually way too generous to Trump. It’s more like he somewhat contained the fire he started in the bedroom while starting another one in the living room:
President Donald Trump may have bought Congress some time to act on family separations when he signed an executive order on Wednesday calling for an expansion of family immigrant detention to prevent parents and kids from being split up at the border.
But it likely won’t last long, thanks to an expected legal battle.
Rather than simply reversing his administration’s zero tolerance policy, as members of both parties have called for, Trump opted for an alternative that could create an equally troubling situation: the indefinite detention of entire families together while parents are undergoing prosecution and then immigration proceedings.
But Trump’s order faces an uphill battle in court, based on a court settlement and ensuing orders that require the government to release child detainees promptly, typically limiting family immigrant detention to about 20 days. The Trump administration cited the restriction when it announced its zero tolerance policy, which called for prosecuting adult migrants for illegal entry even if it meant separating them from their kids. Trump’s executive order instructs the attorney general to seek a change to the court settlement so children can be detained for longer with their parents.
Dara Lind expands on the analysis I linked to earlier:
It is unlikely, though not impossible, that the courts will agree to Sessions’s request. After all, families being held in hastily repurposed facilities while their deportation cases are fast-tracked is exactly the situation, under the Obama administration, that led to the current Flores rules.
Congress can preempt this by passing legislation of its own that would overrule Flores. That might mean simply allowing ICE to detain children in the exact same facilities it detains adults in now, with no added requirements to protect children’s safety. Or it might (theoretically) replace the Flores settlement with new standards for family detention, though no bill that has been introduced so far appears to do that.
The immediate upshot of Trump’s executive order is that the infrastructure that’s been slapped together in the past several weeks to facilitate family separation will be succeeded by a slapped-together infrastructure to facilitate family detention — and deportation.
The conditions are unlikely to pass legal muster. Migrants may be deprived of any meaningful chance to prove that they need to stay in the US to escape persecution. But at least the family will be able to go through it all together.
- Taken as charitably as possible and at face value, the Trump order replaces a policy of forcibly separating families with a policy of indefinitely detaining families. This is an improvement but not much of one, and considerably worse than the status quo ante the “zero tolerance” policy.
- Family separations will probably decrease significantly, but there are plenty of loopholes in the order and they are likely to continue at a lower level.
- The DHS does not appear to be acting to reunite the already separated families.
- The new order cannot be applied legally, so it’s not a solution on its own terms unless the courts allow for the indefinite detention of children (very bad!) or Congress applies new standards (SPOILER: it won’t.)
- The penultimate sentence in Lind’s post is important. Enforcing this order will essentially make it impossible to make individualized determinations of whether people are eligible for asylum, and will mean a lot of innocent people will be sent back to dangerous situations and in some cases killed.
- Trump’s policies should not be judged against a baseline of his own policies, and known, systematic liars should never be given the benefit of the doubt.