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.

National News Roundup: Year 2, Week 21 (June 10–16)


It’s another godawful week, particularly on the immigration front, as we zoom further and further into fascism. As I’ve done once before, this roundup has two extra sections: The Bad is broken up into The Bad (Original Flavor) and The Very Bad (Extra Crispy-Making), and I’m also including a What We Can Do section because I think we all need it. Also just like before, I moved The Good to the top because life’s too short and we all deserve to have our news dessert first. The closing has a rubber chicken singing Havana, because we can all use a unicorn chaser, and that rubber chicken is pretty talented.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a summit! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

The Good:

Constitutional Crisis Corners:

This was yet another full week of Casual Disregard of Governing Norms, unfortunately. Here are the main things to know:

There were also a few noteworthy developments on the Russia Investigation front. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Very Bad — Please Read It Anyway!:

What We Can Do:

There are several initiatives being started to address the immigration issues listed above, and getting involved can be a great way to channel any rage and frustration you may be feeling from the news above. A good starting place is these suggestion lists, which have compiled resources and summarized courses of actions for you already, but I’ve also broken down their suggestions by category here:

And that’s the news this week, and good job and my condolences for making it through the whole thing; your reward is this ridiculous video of a rubber chicken singing ‘Havana’ and hopefully an eventual better government. I’ll be back next week, and I hope you will be too. In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me the abolition of CBP!

National News Roundup: Year 2, Week 20 (June 3–9)


Y’all, I don’t even know what happened this week. To the extent that there was a coherent theme, that theme is “Everyone in Government Is Twelve Years Old and Everything is Terrible.” I got nothin’.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a G6! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

We had quite a week for Casual Disregard of Governing Norms, even by our modern low standards. Here are the main things to know:

There were a couple of developments on the Russia Investigation front too. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

And that’s the news this week — less than last week, but it makes up for it by being terrible. I’ll catch you next week, hopefully with more good news. In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me government officials who act their age!

National News Roundup — Year 2, Week 19 (May 27 — June 2)


This week wasn’t as catastrophic as last week. I mean, it wasn’t so good, either; in particular, there was a striking amount of Constitutional Crisis Corner, the news from Puerto Rico is dire, and our political norms are continuing to erode. It says something about how bad it was last week that I’m still feeling a small sense of relief about one section’s worth of Bad, and I won’t judge you if you do, too.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a summit! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

Now that things have quieted a bit, let’s catch up on Violations of the Emolument Clause regarding the Trump Organization and China. Here are the main things to know:

We had quite a week for Casual Disregard of Governing Norms, including an unpleasant resurgence of press harassment. Here are the main things to know:

There was also more aggression regarding Infringement of First Amendment Rights:

  • Actual Censorship Is Apparently a Thing Now. The day after Samantha Bee apologized for calling Ivanka Trump a vulgar epithet (thanks for the euphemism, New York Times!), Trump publicly demanded to know why she wasn’t fired for the thing she had just apologized about. (Trump also called the lack of firing a ‘double standard’ because Roseanne Barr got canceled for being terminally racist, but more on that below.) But even more concerning than Trump’s temper tantrum was Sarah Huckabee Sanders’s statement about it as official White House press secretary: “The collective silence by the left and its media allies is appalling. Her disgusting comments and show are not fit for broadcast, and executives at Time Warner and TBS must demonstrate that such explicit profanity about female members of this administration will not be condoned on its network.” (emphasis mine) In other words: The government is pressuring a private entity to fire its staff on account of she said bad things about said government, and that is literally what First Amendment freedom of speech is supposed to prevent.

There were a few developments on the Russia Investigation front too, including one major bombshell. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

And that’s the news this week, which honestly is more than enough for one week, good grief. I’ll be back next week, and I hope you will be too. In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me the a week with fewer last-minute news items!

National News Roundup — Year 2, Week 18 (May 20–26)


Realtalk and forewarning: This week may be the worst news week I’ve ever seen since I started doing roundups about seventy weeks ago. As a result, this roundup has two extra sections: The Bad is broken up into The Bad (Original Flavor) and The Very Bad (Extra Crispy-Making), and I’m also including a What We Can Do section because I think we all need it. Also, just for this week, I moved The Good to the top because life’s too short and we all deserve to have our news dessert first.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a sinkhole! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

The Good:

Constitutional Crisis Corners:

We had quite a week for Casual Disregard of Governing Norms, including an unpleasant resurgence of press harassment. Here are the main things to know:

There were a couple of developments on the Russia Investigation front too. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Very Bad — Please Read It Anyway!:

What We Can Do:

And that’s the news this week, and good job and my condolences for making it through the whole thing; your reward is this ridiculous video and hopefully an eventual better government. I’ll be back next week, and I hope you will be too. In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me the abolition of ICE!

National News Roundup: Year 2, Week 17 (May 13–19)


Well, we’re drinking from the fire hose again this week, and most of the newswater is pretty fetid. There were a few bright spots, thankfully, but consider yourselves forewarned anyway — this was a pretty rough week.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a postage rate! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

It was another fairly quiet week regarding Casual Disregard of Governing Norms, but there were a couple of things worth noting:

There were a couple of developments on the Russia Investigation front too. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

And that’s the news this week! It was in fact as awful as forecast last week, but hopefully that means next week will be better. But I’ll be back either way, because I’m good at Weeble impressions, and I hope you are also! In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me a better executive branch!

National News Roundup: Year 2, Week 16 (May 6–12)


Honestly, the theme of this week was “Taking This Horrorshow on the Road.” Between updates on the Russia investigation, increasingly draconian policies at the borders, withdrawal from the Iran nuclear deal, and the release of North Korean prisoners, it definitely feels like the most noteworthy things to happen this past week occurred outside the country. But there’s still a huge amount of horrible happening domestically, and it’s a good idea to keep on top of that as well.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a confirmation hearing! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

It was another fairly quiet week regarding Casual Disregard of Governing Norms, but there was one major exception to this general rule:

There was a fair amount happening this week on the Russia Investigation front too, as several different interrelated issues moved forward. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

And that’s the news this week! I’m afraid next week looks like it’s gearing up to be an awful news week, if today is any indication, and I’m sure we’ll be crying in our comfort foods by this time next week. But I’ll be back, and I’m hoping so will you, and if you need anything before then, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me hope for tomorrow!

National News Roundup: Year 2, Week 15 (April 29-May 5)

[Public domain], via Wikimedia Commons

The name of the game this week is ‘weird.’ Seriously, folks — the bad news is weird. The good news is weird. Even the Mueller investigation stuff is weird. There’s a bit of straight-up-bad news as well — because we’re still living under the Trump administration — but for the most part it’s incompetence, ignorance, and one-eighties all the way down.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a stump speech! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

Though not as much as last week, there were still a couple of Casual Disregard of Governing Norms this week as well. Here are the main things to know:

There was a fair amount happening this week on the Russia Investigation front too, as several different interrelated issues moved forward. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

And that’s the news this week! Enjoy the mostly-benign surreality while it’s possible, because we’ll be back to a Trash Fire special by this time next week. But I’ll be back, and I’m hoping so will you, and if you need anything before then, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me small flightless water fowl!

National News Roundup: Year 2, Week 14 (April 22–28)


Well, this week is definitely making up for lost time. It’s like all relevant parties tried News Week Lite last week and decided it wasn’t enough calories, so this week has three extra helpings of Modern Flavor Trash Fire. But there’s a lot of good news, too — turns out some of it makes a good Garbage Bin Flambe — so it could be worse.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a congressional hearing! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

There was a lot of Casual Disregard of Governing Norms this week, even by our ordinary standards — it’s like the executive branch was saving up for a special occasion. Here are the wacko highlights:

There was a fair amount happening this week on the Russia Investigation front too, as several different interrelated issues moved forward. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

So that’s what I have for now, and I think we can all agree it is more than enough. I’ll be back next week, and if you need anything before then, feel free to ping the National News Roundup ask box — send me questions! Send me feedback! Send me trash fire recipes!

National News Roundup: Year 2, Week 12 (April 8–14)


This administration, good gravy. I know the phrase “This week was a horrorshow” is losing all meaning, but on the plus side the administrative calls are not coming from inside your house. Yet. I checked.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a door man! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

This week included yet another couple stories regarding Casual Disregard of Governing Norms, because we live here now. Here’s what’s going on:

Against that backdrop, it’s not surprising that there was a lot of noteworthy Russia Investigation movement this week as well. Here’s a summary of the main things to know:

Your “Normal” Weird:

The Bad:

The Good:

Given how quickly the news cycle has started to move, I’m sure we’ll have seventeen new items by Friday — but that’s what I’ve got for now! I’ll catch y’all next week. And in the interim, if you need anything, there’s always the National News Roundup ask box — send me questions! Send me feedback! Send me pictures of your Grunkle Stan!