James Lankford, the Republican Trying to Solve the Family-Detention Problem

Senator James Lankford (R-OK) speaks during a Senate Intelligence Committee hearing to answer questions related to Russian use of social media to influence U.S. elections, November 1, 2017. (Joshua Roberts/Reuters)
He’d like Congress to set up a new system of residential shelters.

If lawmakers really want to put an end to the ethically dubious and politically costly policy of separating children from parents who bring them across the border illegally, they should cut off funding allocated to the executive branch for that purpose, Senator James Lankford of Oklahoma explained to National Review Thursday in an exclusive interview. Lankford is pursuing several ways of achieving this outcome, including co-sponsoring a bill that would kill the funding while providing new money for family shelters.

Lankford, who recently emerged as a leading centrist voice on immigration despite having been elected to the upper chamber only in 2015, believes that work must continue if Congress hopes to make permanent President Trump’s Wednesday executive order officially ending the practice.

“Whatever the executive branch does or doesn’t do, the problem still remains to be resolved on the congressional side. I do firmly believe the Flores consent decree and settlement is the issue here,” Lankford said, referring to a 1997 court ruling that bars the federal government from detaining minors for more than 20 days. “The first thing you do is remove funding for the implementation of the Flores agreement to say that Congress disagrees with that settlement agreement.”

The Flores decree, once obscure, has been thrust to the fore of the national debate in recent days as a likely obstacle to the Trump administration’s efforts to simultaneously (A) continue its “zero tolerance” policy of prosecuting everyone who attempts to cross the border illegally and (B) keep families together as adults await prosecution. The administration and its surrogates insist they must prosecute adults who cross the border illegally with children — as failing to do so would incentivize traffickers to use children as cover for their clients — and that Flores in turn requires that children be separated.

The only alternative is “catch and release”: Releasing families into the U.S. in the hopes that they’ll show up for a hearing at a later date, either to be prosecuted or to seek asylum. At least in the short term, that appears to be the upshot of Trump’s new order, as Customs and Border Patrol has reportedly decided to stop referring adults who come illegally with children for prosecution.

At Trump’s behest, Attorney General Jeff Sessions has asked Judge Dolly M. Gee, an Obama appointee who sits in the Central District of California and upheld Flores in 2015, to revise the ruling. Many also believe the administration will begin to flout Flores soon, holding families together beyond the 20-day limit and forcing a legal challenge. Whatever happens, Lankford hopes to circumvent any judicial opposition by working through the appropriations committee to eliminate funding for Flores compliance.

The Oklahoma lawmaker has not given up on the prospect of eliminating the Flores mandate as part of a broader immigration bill. “We have to deal with a lot of other issues on border security and get a long-term strategy for what we’re going to do on border security,” he said. “We still gotta address DACA. So there are a lot of other needs besides just this issue and the Flores decision.”

The bill he has co-sponsored with a group of prominent Senate Republicans (led by Majority Leader Mitch McConnell and Thom Tillis of North Carolina), though, is relatively narrow. The Keep Families Together and Enforce the Law Act reverses the 20-day requirement and denies funding for implementation of Flores so that the administration won’t have the autonomy to implement it absent congressional consent.

It also outlines a new system for handling these families. Prior to Trump’s order, the 20-day requirement manifested itself in DHS transferring minors to the Department of Health and Human Services (HHS), which then expended considerable resources finding suitable sponsors for the children and placing them in the care of a government contractor in the interim. The bill eliminates that process entirely, as families will remain together in DHS-run “family residential centers.” In addition to funding those shelters, the bill authorizes the hiring of 225 new immigration judges (an increase of 75 percent) and requires the attorney general to prioritize families when resolving immigration cases.

Control over funding, and how it is allocated, will in large part determine the experience of these children.

However, Lankford cautioned against “locking in on any one bill” as one follows the debate, as negotiations are in flux and developing rapidly.

Placing children in the care of third-party contractors while searching for, and ultimately vetting, a suitable sponsor to take custody of them is enormously expensive, according to Jessica Vaughan, the director of policy studies at the Center for Immigration Studies, who placed the annual cost around $3 billion.

“It funds everything from these contract shelters, like Southwest Key, to transporting the kids to their sponsor, to all of the medical care and the vetting of sponsors, which has now increased, and the follow up work to make sure they’re still where they’re supposed to be. It’s enormously expensive,” she said.

Vaughan added that residential centers would likely be cheaper than the current system. “They have these kind of dorm suites. There’s communal kitchen areas, so they can cook. They do their own laundry, and it’s not like the child-only centers where their every need is taken care of by the contractor,” she said.

Much remains uncertain about how, exactly, the government will accommodate families at the border going forward, but one thing is clear: Control over funding, and how it is allocated, will in large part determine the experience of these children. Should Lankford and his colleagues succeed, those children will not be flown or bussed around the country to a government contractor responsible for catering to their every need. They will remain with their parents while due process runs its course and the law is enforced.

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