Responding to the outcry over his administration’s policy of separating migrant families, President Trump signed an executive order today ostensibly limiting separation while simultaneously expanding family detention. The executive order explicitly links the alternative nightmares of family separation and detention.
The executive order purports to end the family separation policy. Indeed, it claims that the administration’s policy is to “maintain family unity, including by detaining families.” To do that, the president ordered DHS to “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” § 3(a). The president made an exception for instances in which detaining a child “would pose a risk to the child’s welfare.” § 3(b). This is unlikely to mean much. Child welfare experts agree that any amount of detention harms a child’s welfare. Indeed, the American Academy of Pediatrics said as recently as last week that it opposes child detention for this very reason. Similarly, the UN’s Special Rapporteur on Torture has said that immigration detention “is inextricably linked—in fact if not in law—with the ill-treatment of children,” and called on nations to abolish detention of migrant children.
Clearly envisioning that most children won’t be found to suffer from detention, President Trump ordered the Justice Department to go to court to get out of a decades-old binding settlement that places limits on where and for how long the government can detain children. §3(e). (The Justice Department requested modification the following day. I summarized the government’s position on Twitter here.) In that agreement—known as the Flores agreement—the federal government agreed to place unaccompanied children in the “least restrictive setting appropriate” and to favor release from government custody. The Flores agreement is overseen by a federal judge and that judge has concluded that children currently in ICE’s custody are subject to the agreement’s terms. I wrote more about this in a December 2017 primer available here.
I have two preliminary thoughts about the executive order. First, ICE already runs a family immigration prison network. Most of it was built under President Obama since the end of 2014. It is already operating near capacity. It’s hard to know where ICE could quickly find substantially more beds to house families. It is almost certain to seek help from private prison corporations like GEO Group and CoreCivic (formerly Corrections Corporation of America) that already run family immigration prisons in Texas, but even they can’t open a facility overnight. The president tries to maneuver around this problem by directing the Defense Department and other federal agencies to work with DHS to find suitable facilities. But everyone—whether private prison corporations or federal agencies—needs to be paid. The executive order notes that DHS will have to find money for these beds. We’ll have to see if Congress is willing to pay for them.
Second, asking the federal court to modify the Flores agreement in no way suggests that the court will agree. I’m at a loss to see why the court would shift course now to allow DHS to house children alongside their parents in facilities built for adults (i.e., county jails and prisons) when it has refused to do so before.
Separately, substituting detention for separation is no cure. These are, as I wrote in The Guardian recently, “alternative forms of cruelty.” Instead of moving back and forth between the nightmare of detention and the nightmare of separation, the United States “could instead breathe life into our legal tradition’s respect for liberty and close the doors of immigration prisons.”