Earlier today a number of news outlets reported that Trump was preparing to issue an executive order that would flout existing law by mandating indefinite family detention. It appears those reports were wrong. The order is out, and under the most plausible reading it actually implements a temporary (and perhaps indefinite) implementation of a catch-and-release policy for illegal-immigrant families with minor children. Here’s how:
The order declares that the secretary of homeland security “shall, to the extent permitted by law . . . maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” Currently, the consent decree in Flores defines the “extent permitted by law.” In fact, the administration acknowledges this reality by expressly requiring Sessions to seek modification of the agreement:
The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.
In other words, the administration will comply with the law, and until it’s changed, that law is set by Flores. Trump is right back in the Obama box. He doesn’t want to separate families, but he can’t keep them together beyond 20 days. Thus, we’re back to catch-and-release.
If this is indeed the administration’s interpretation of the order, then it will be interesting to see what the Democrats do next. It’s entirely possible that they’ll do their best to block any legislation overturning Flores on the basis that they’ve essentially won, gambling that Trump won’t ever return to the policy that put him in this predicament. If they truly believe he’s an authoritarian bigot who doesn’t care one bit about immigrant families, then that’s quite the roll of the dice. If they actually believe that he bends to prevailing political winds, then that’s not a bad bet.
Finally, there are some folks online who suggest that there is enough wiggle room in the language for the administration to maintain family separation even if they don’t modify Flores (effectively rendering the executive order a nullity), but such a massive con would take an already-toxic public debate and push it to even lower depths. Also, it would seem to contradict the announced policy, designed to “maintain family unity,” with the only clear exception in the case of a threat to the child’s welfare.
According to any fair reading of the order, it represents a massive capitulation by the administration. One can only hope that it’s not a climb-down so complete that it further incentivizes Democrats to torpedo targeted legislative reform.