As Usual, Trump's Solution Doesn't Solve Anything
Let’s be clear, Trump’s executive order today does nothing to actually solve the problem of how to deal with all the people caught up in the zero tolerance (read intolerance) policy at the border. Because of a consent decree in the 1997 case of Flores v. Reno, the federal government can not detain unaccompanied minors and children accompanied by their parent or parents for more than 20 days. After that period, the government is required to release the child to a parent, relative, legal guardian, or an accredited entity willing to take care of the children. So, assuming the Flores settlement still applies, in three weeks time children will again be separated from their parents and Trump will blame it on the courts.
Moreover, there are presently not nearly enough facilities that aren’t already full that will be able to handle the number of families that will have to be detained, just as there are not enough facilities at present to handle the separated children. In addition, the Flores agreement stipulates that minors must be held in the least restrictive environment possible. That would presumably mean that the present facilities for housing adults would not be eligible for use. It appears that the plan is to put these families in these new tent cities on military bases that may not be properly vetted and licensed as required by the Flores settlement.
What Trump has done is issue an executive order that he knows is on its face is illegal and actually unworkable on the ground. But Trump believes this solves his immediate political problem and buys time to create some sort of solution. That may come in the form of legislation that will override the Flores settlement or the courts will rule that families may be held together in detention for more than 20 days and possibly until their cases are finally adjudicated in unlicensed and unvetted military facilities. Neither of those is an especially positive outcome. And if neither of those comes to pass, then the children will once again start begin separated from their parents.
Because this new executive order was essentially crafted and signed within hours yesterday, there has been no ability for the bureaucratic and administrative functionaries to prepare for the changes required, just as there was no preparation for the zero tolerance (read intolerance) policy to begin with and just like most Trump policy pronouncements in general. In addition, there is absolute confusion at HHS and DHS about what will happen to the children who have already been separated. At present there is no plan for reunification of those children of those children already separate with their parents.
Lastly, it should be noted that the Trump administration has changed the process by which parents and relatives can have their related children released to them. Under prior rules, information on those parents or relatives was only held and processed by HHS, meaning that it was quite possible for undocumented immigrants to have their child relatives released to them. Under Trump’s new policy, that information is now passed on to DHS and therefore ICE. This means that undocumented immigrants trying to get a minor released to them will potentially be putting themselves at risk of arrest and deportation by ICE. And that potentially means that a child could conceivably become orphaned twice by the Trump administration.
