In a pretend effort to end a real crisis entirely of his own making, President Donald Trump signed an Executive Order on Wednesday that purports to reverse the administration’s highly unpopular family separation policy.
Trump’s EO actually does nothing of the sort. Rather, like a road trip mirage on the fast-fading horizon, the closer one gets to the apparent substance of the thing, the more one realizes the obvious trick.
Family Separations Are Very Much Still On The Table
First of all, this order does not end Jeff Sessions‘ recently-enacted zero tolerance policy. The order provides:
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. 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.
What this means is that family separations will absolutely still occur.
Parents will still be charged as criminals over entirely lawful attempts to claim asylum at the U.S.-Mexico border. But, instead of a blanket policy of family separation as one of the first steps in the name of deterrence, the administration has mysteriously rediscovered the concept of maintaining “family unity.” At least on paper.
The thrust of Trump’s EO is that instead of separating children and placing them in far-flung cages while their parents undergo deportation proceedings, parents and children will be detained-and-caged in family-style internment camps. But notice this weaselly lawyer line, “…where appropriate and consistent with law and available resources.” What does that mean? It’s up to the Trump administration to define. But also notice that the above-language only appears in a broad policy section that’s more like a statement of immigration principles supplied by the Trump White House.
Let’s take a look at the section which actually enumerates what the federal government should do as a result of this order.
Section 3(a) reads:
The 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.
Easy trick here. Did you spot it? Read again, “The Secretary…shall…maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.”
Notice what’s missing? The key word: “together.” While the statement of principles in this EO feigns concern for family unity, the actual meat of the order is mysteriously silent on the issue.
There’s also section 3(b) which notes, “The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.” This is another section cratered with slippery language that the administration’s own immigration and border agencies get to define.
In effect, these various sections give wide latitude to law enforcement functionaries and bureaucrats intent on more of the same if they’re so inclined. And, considering this administration’s record on this issue and others, more of the same is about all that one should reasonably expect.
The Order Probably Can’t Even Be Enforced
Second, the “solution” proposed by this Executive Order appears to be expressly illegal.
Trump’s suggestion here is that the federal government begin acting in defiance of an existing court order.
The EO does appear to recognize the tenuous nature of this suggestion and Sessions is instructed to promptly file a motion seeking a modification of that court order. This section reads, in full:
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.
Under the terms of Flores, families may only be detained together for up to 20 days. Under the terms of Trump’s EO, families would be detained together indefinitely. But unless the Central District of California court decides to amend the terms of the Flores agreement, the situation will quickly devolve back to the present policy of tent cities for children.
And there’s absolutely no indication the Central District of California would be prepared to modify the order.
For one, the administration is purporting to engage in legally prohibited conduct and petition the court for a pass after the fact. Secondarily, representatives for immigrant families will likely–and accurately–contend that the border crisis is entirely a self-inflicted disaster on the part of the government and that they shouldn’t be rewarded for such destructive behavior.
Additionally, because this EO is so painfully vague and littered with caveats (see above) that the court is likely to view it as a blank check for the Trump administration. Contrast that with the very specific guidance contained in the Flores agreement and you’ve got an instant court battle.
TL;DR: Trump’s Executive Order suffers from various defects, ethical and legal. The pretend solution is turn a child crisis into a family crisis. But even there, the methods prescribed don’t categorically foreclose against family separation–quite literally the opposite–and those that do are in flagrant violation of existing laws which provide for humane treatment of migrant children. This order is an affront to any notion of justice or humanity.
[image via Alex Wong/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.