Trump’s executive order purports to solve a problem that he alone created: separating families at the nation’s southern border. Worse than a scam, his order presages a chapter in American history that could make World War II Japanese internment camps look like the good old days.
1. Trump Creates Crisis
Most undocumented immigrants who survive the trek to the US-Mexico border seek asylum – a right afforded them under Article 31 of the 1951 Refugee Convention and 1967 Protocol to which the US is a party. Asylum claims are civil – not criminal – matters. Since 2012, the federal judicial denial rate for asylum claims has increased from 45 percent to 60 percent. But that means almost half are accepted. Unfortunately, it can take months to adjudicate a claim, and resulting deportation and related proceedings can take years.
A federal court order (the consent decree in the 1997 Flores v. Reno case) prohibits the government from detaining children in such families for more than 20 days. Until April, the practical implementation of Flores was to keep families together for a few weeks and then release the entire family during the pendency of ongoing civil asylum proceedings. In general, prosecutors faced with limited resources exercised permissible discretion not to pursue criminal charges for illegal entry – a misdemeanor for first-time offenders.
All of that changed when Attorney General Jeff Sessions announced Trump’s “zero-tolerance” policy to prosecute criminally as many border-crossing offenses as possible. As a result, the Department of Homeland Security began separating families at the border, placing adults and children on different tracks. DHS referred adults to the Justice Department for prosecution and potential deportation. It sent children to the Department of Health and Human Services for eventual placement with family members or suitable sponsors.
No law changed; no court issued a new ruling; Trump alone created the separations.
2. Trump Transforms Family Separation Into Family Detention
Trump’s executive order requires Sessions to seek a modification of the Flores decree so that the government can detain children for more than 20 days – that is, until the conclusion of their parents’ legal proceedings – and thereby keep those families together, albeit in a prison-like environment.
Now you know why another provision of the executive order requires the Defense Department to work with the Department of Homeland Security on housing for the anticipated deluge of new detainees, including the construction of new facilities on military bases. Trump’s plan would place thousands of families in confinement for years.
3. Trump Blames the Courts and Congress
The starting point for all things Trump: If anything bad happens, it’s not his fault. However, he created this mess. With a phone call, can fix it all by himself. But that wouldn’t suit his larger agenda or his personality.
If, as seems likely, courts balk at the prospect of detaining children indefinitely, Trump will blame two of his favorite foils: Congress and the courts. The title of Trump’s executive order is telling (“Affording Congress an Opportunity to Address Family Separation”). But the following sentence – remarkable for such a document – is the real giveaway:
“It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.” (Emphasis supplied)
AG Sessions’ counsel, Gene Hamilton, previewed Trump’s coming attack on the judge in the Flores case:
“The result of this decision and this ruling has placed the executive branch in an untenable position. Do we catch and release every alien who comes with a child across our southwest border, or do we release (them)? It’s on the judge, it’s on Judge Gee to render a decision here …The simple fact of the matter is Judge Gee has put the executive branch into an untenable position, that’s why we’re seeking for Congress to make a permanent fix.” (Emphasis supplied)
4. Trump Leaves 2,300 Children Behind
What happens to the 2,300 children whom Trump has already separated from their parents? His people don’t know the answer because Trump himself doesn’t care about any of them.
“There will not be a grandfathering of existing cases,” said Kenneth Wolfe, a spokesman for the Administration for Children and Families, a division of the Department of Health and Human Services, citing the White House as his source on Wednesday afternoon. By Wednesday evening, Brian Marriott, senior director of communications for the agency, was equivocating: Wolfe “misspoke” and “it is still very early, and we are awaiting further guidance on the matter.” Marriott said that “reunification is always the goal” and that the agency “is working toward that.”
There are other problems with Trump’s order, including loopholes that could render it largely illusory and position Trump to blame Congress. (Examples: “It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” (Sec. 1); “Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” (Sec. 3(a))
5. Trump Lulls Public Into Complacency
Absent congressional and/or court action, 20 days from the date that Trump signed the executive order, the situation could revert back to square one. Trump could make the phone call that would end the latest presidential nightmare to produce international condemnation. Making that call would require him to admit a mistake and take responsibility for a vile act. That is why it won’t happen.
Trump may hope that his executive order will dampen enthusiasm for the nationwide protests planned for June 30. I hope he’s wrong. Now more than ever, resistance to Trump must stay on message. Trump is staying on his.
This is not a drill.