The Family Separation Executive Order and What, If Anything, It Means

In response to a media maelstrom over a policy that has been in effect for about 20 years, President Trump issued an executive order that at first looked like a craven retreat from a principled stance, if hard-nosed and unpopular, on enforcing the law. On second look, I’m not sure what has actually changed.

Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. 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. 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.

Key takeaway: zero tolerance is still in effect. Family unity is a secondary, not a primary consideration.

Sec. 2. Definitions. For purposes of this order, the following definitions apply:

(a) “Alien family” means

(i) any person not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and

(ii) that person’s alien child or alien children.

(b) “Alien child” means any person not a citizen or national of the United States who

(i) has not been admitted into, or is not authorized to enter or remain in, the United States;

(ii) is under the age of 18; and

(iii) has a legal parent-child relationship to an alien who entered the United States with the alien child at or between designated ports of entry and who was detained.

Nothing new there. Just a note, the policy is not directed only at illegals but also asylum seekers.

Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally.

(a) 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.

(b) 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.

What would be the test for a risk to the child’s welfare?

(c) The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(d) Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

Nothing new.

(e) 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 2017, Sessions tried to get the Ninth Circuit to remove a consent decree that limits the amount of time minors can be held in detention. The Ninth, naturally, refused because Trump is Satan. This is not going anywhere but it is a nice bit of jujitsu to hoist the Ninth by its own petard and have it decide that family detention is not allowed. If the Ninth doesn’t give relief on the detention issue, then we are right back to where we are today wish the illegal minors being placed in a group home type environment pending the outcome of the parents’s case.

Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.

I don’t know if this is a new thing or not. I’m pretty sure the existing policy is first in, first out.

Sec. 5. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Section (a)(i) is key here. The administration is making clear that this order is not binding it to do anything that it doesn’t have to do.

My assessment (IANAL) is that this is an order about nothing. It says the government is not going to relent from zero tolerance and that, if necessary, it will comply with the consent decree that limits detention. At the end of that time, however, we are right back to where we are today. In Reno vs. Flores, the Supreme Court ruled by a 7-2 majority that unaccompanied minors could be held unless there was a “close relative” available to take custody of them. If their parents are in jail or an adult detention facility, then they can’t have custody of them.

Here are some takes via Twitter:

Less than an hour after Trump signed an executive order that he says would stop child separations at the border, Homeland Security Sec. Kirstjen Nielsen told Republicans it’s still up to Congress to fix the issuehttps://t.co/ajISFizqYU

— BuzzFeed News (@BuzzFeedNews) June 20, 2018

She is correct. Either the executive order does nothing, or it restores catch and release. https://t.co/3M4Rb16t7h

— Ben Shapiro (@benshapiro) June 20, 2018

An HHS official tells @weijia that there will NOT be special efforts made to reunite children who have already been separated from their families bc of the Zero Tolerance Policy, despite Trumps EO. Process will proceed for minors currently in the unaccompanied children program.

— Jacqueline Alemany (@JaxAlemany) June 20, 2018

Lawyer who read EO says: “It’s so vaguely worded that I don’t doubt they’re going to find reasons to keep separating the kids, either because of lack of resources to house them together, or because they’ll judge so many of them as being in danger for having ‘criminal’ parents.” https://t.co/hHWrtLHnu4

— Jennifer Jacobs (@JenniferJJacobs) June 20, 2018

As I’ve said repeatedly, the opposition to this detention process which is two decades old has zero to do with kids and everything to do with open borders.

This Executive Order doesn’t fix the crisis. Indefinitely detaining children with their families in camps is inhumane and will not make us safe.

— Kamala Harris (@SenKamalaHarris) June 20, 2018

Just to be clear, separating children from parents is inhumane, and keeping children with parents is inhumane. Which means the only humane solution is release. Which is the entire agenda. https://t.co/ADm4WojU3Z

— Ben Shapiro (@benshapiro) June 20, 2018

The ink isn’t even dry on the new executive order ending separation policy & some Democrats already arguing that keeping families together isn’t enough. Now they want them & their parents released after unlawful entry knowing full well that high % will never appear for hearing

— Marco Rubio (@marcorubio) June 20, 2018

The Democrat pivot from “Trump is a monster who wont help children separated from parents at the border” to “Trump is monster who imprisons WHOLE FAMILIES!”

is so shameless, its hilarious and depressing at the same time

— Buck Sexton (@BuckSexton) June 20, 2018

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