Zero Tolerance and Maximum Trauma: An Early Analysis of “Affording Congress an Opportunity to…

(This is the zillionth installment of a series of articles unpacking the many horrifying immigration executive orders issued by the Trump administration. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

So, Sessions announced a “zero tolerance” policy back in April, which he reiterated back in May, which has resulted in families being separated at the border en masse. The official estimate is that 1,995 kids have been separated from their parents since this policy was fully implemented in mid-May.

While this has been happening, Trump has, inexplicably, kept saying it was “the Democrats’ fault” and that we needed Congress to change the law if we didn’t like the policy.

This was very confusing until today, when Trump signed an Executive Order that clarifies his position. It’s still pretty confusing for the average person, particularly as everyone in the administration gives a slightly different story, so I’m writing this to help clear up what the heck is happening. The very short version is: yup, he’s right, he needs Congress or a federal court to act in order to get the policy in place he wants. And since it’s a thing he wants, your instinct that it’s probably awful is pretty spot-on.

A Bit of Background:

In order to fully understand what’s going on, it’s helpful to know what this executive order is referencing. So here’s a bit of backdrop:

• Flores vs. Reno. This is a consent degree from 1997 that says that the federal government isn’t allowed to put kids in federal custody (read: jails) for more than 20 days total. It’s originally pertaining to unaccompanied minors, but as recently as last year it’s been applied to the practice of splitting up families, which was first held by the 9th Circuit in 2016. In short: The executive branch currently isn’t allowed to hold kids in detention long-term, because what is essentially a class action settlement agreement is standing in the way.
• How Settlements Work. Settlements are basically contracts, which means they can be amended. (Perhaps some of you see where this is going.)
• How Checks and Balances Work. As a general rule, Congress can respond to court decisions by passing legislation that clarifies existing laws, or resolves ambiguities interpreted by courts when there isn’t a law on the books. This is how criminal law statutes slowly replaced common law, and why things like mandatory minimums can exist — if there’s a law in place, the court doesn’t have blanket discretion. (Perhaps more of you see where this is going.)

Okay, have we got all of that? Cool, let’s get to today’s executive order.

…so what does this order do?

Here are the major highlights, and by ‘highlights’ I mean you will wish you were high while you read this:

• Trump is trying to goad Congress into undoing the Flores settlement. The executive order literally says this in the name; and just in case you missed it, there’s this gem in the intro paragraph: “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 mine.) In other words, “I didn’t want to stab this puppy, but then you made me do it, on account of you didn’t stop my hand fast enough when I tried to stab this puppy.”
• Trump is also forcing Sessions to bug the courts about undoing the Flores settlement. This one is also right there in black and white: “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”).”(sic)(emphasis mine) So, basically, they know they can’t currently hold kids in jail indefinitely. But as is suggested by the end of that sentence (“in a manner that would permit the Secretary . . . to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”), they sure want to hold kids in jail indefinitely.
• They aren’t going to wait for Flores to get ‘fixed’ before they enact this. And here we get to the real poisoned meat of this executive order, because once they’re done dissing Congress and explaining that why yes, they do mean to include asylum seekers (more on that below), the very next section is about how they’re gonna hold kids in prisons as long as they can. More specifically: “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.” This is a bit euphemistic, so I want to clarify: ‘maintain custody’ means the same thing as euphemisms like ‘in custody’; they’re talking about people being held in detention facilities. Which means that they’ll hold kids as long as it’s legal to do that, and if Flores gets ‘fixed’ that will be indefinitely. If Flores doesn’t get ‘fixed,’ well… kids may just have twenty days in prison before they get separated from their families.
• This definitely applies to people who have committed no crimes. A careful read of the definitions section makes it clear that they’re also talking about people who arrive at proper checkpoints to seek asylum, and therefore haven’t illegally entered the United States. The definition covers people who “have not been admitted into . . . the United States . . . who entered this country at . . . designated ports of entry and who was detained.” It’s clear this isn’t an accident, because of that phrase I quoted earlier about the purpose of asking a court to amend the Flores settlement: “…to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” (emphasis mine) In asylum cases, there’s no illegal entry, which means no criminal proceedings. They’re contemplating cases where there are no criminal proceedings in the wording of this order, and that means they’re contemplating people who haven’t broken any laws.
• This also definitely permits families to be held in literal federal prisons. This doesn’t become clear until you get to the seemingly innocuous sections about the Secretary of Defense and the ‘heads of executive departments and agencies,’ which both just say that they have to ‘provide to the Secretary [of Homeland Security], upon request, any existing facilities available for the housing and care of alien families.’ Except ‘facility’ in this instance means ‘place you maintain where we can warehouse people,’ which for the Secretary of Defense means military bases, and y’all, the Federal Bureau of Prisons is an executive agency. So, for those of you out there who were clinging to the vague hope we weren’t really talking about putting infants in prison… nope, I’m so sorry, we’re literally talking about putting infants in prison.

Ugh. Where does that leave us?

Some things we do know for certain now: Whatever else happens, there’s no plan in place for reuniting the 2,300 kids already separated with their parents, who in some instances have already been deported while their kids remain behind. And if Kirstjen Nielsen leaves the Mexican restaurant long enough to listen to the order about her (which seems a safe bet), we’re definitely going to see families detained together for at least some window of time.

But it’s not clear whether this administration will separate families at the twenty-day mark, leaving us with family separation and traumatized inmate children, or argue that a pending case means Sessions is allowed to ignore Flores and just keep them there indefinitely, or what. The uncomfortable and honest answer is that we’ll have to see what every actor in this terrible play does next — Sessions will probably file with a federal court; Congress will probably not pass a plan that allows kids to sit in prisons long-term; and Trump will probably continue to say everything is the fault of Democrats everywhere. And we’ll have to keep an eye on all of it so that we can be responding in real time. And engage in self-care and keep an eye on each other, too, because this stuff is grueling and we’re only gonna get through this if we do it together.