After mounting pressure from activists and concerned Americans, President Donald Trump signed an executive order Wednesday hoping to find an end to the family separation policy his own administration implemented.
“I didn’t like the sight or the feeling of families being separated,” Trump told reporters. “I think anybody with a heart would feel strongly about it. We don’t like to see families separated.”
In a tweet shortly after the president signed the executive order, House Democratic leader Nancy Pelosi described the action as just “replac[ing] one form of child abuse with another.”
Trump’s reversal on family separation doesn’t put an end to the humanitarian crisis. In fact, his new order contains several provisions with disturbing implications. Here’s what you need to know.
Indefinite family detention takes the place of separation
While the order states the administration’s policy is to now “maintain family unity, including by detaining alien families together,” the language is exceedingly broad, allowing the Department of Homeland Security (DHS) to detain families together.
Under the order, families will be kept in DHS custody until both the criminal case against the parent and the immigration case against the family are completed. For a family seeking asylum, as many who cross the border or entry through a port of entry are, that can take weeks or months.
The Obama administration attempted to detain families in 2014 to disastrous results immigration lawyers have described as a “shit show.”
The order also doesn’t explicitly end family separation at the border. Families will be reunited “to the extent permitted by law and subject to the availability of appropriations,” effectively giving the administration an out.
The only way to solve the current crisis is to end the zero tolerance policy and stop prosecuting the act of migration. The administration, however, has made it clear the zero tolerance approach to immigration will not stop.
The administration knows what it is doing is illegal
The Trump administration is calling on Attorney General Jeff Sessions to ask the courts to change their stance on the Flores settlement and make indefinite detainment of families legal.
The president addresses this in a portion of the executive order that reads: “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.”
As it was interpreted by courts under President Obama, the Flores settlement prevents the federal government from keeping children in immigration detention for longer than 20 days. Most asylum cases, however, take much longer than 20 days. As a result, it is highly likely that this executive order will lead the government to violate the Flores settlement as it stands now.
Senior Justice Department officials have confirmed since Trump signed the executive order that the Flores settlement still takes precedent.
JUST IN: Senior Justice Department official Gene Hamilton confirms the Flores settlement still controls, and that unless Congress or the court acts, the government can only detain families together for "up to 20 days."
— Steven Portnoy (@stevenportnoy) June 20, 2018
There is the possibility courts won’t accept Sessions’ request, leaving it up to Congress to pass legislation that would overrule Flores.
It’s unclear whether there are facilities suitable for families available
With Immigration and Customs Enforcement (ICE) increasingly running out of space to house adults, where will these thousands of children be housed? The administration believes the answer is housing families in federal prisons or requiring the military to provide the space.
One of the problems with “detaining and maintaining” immigrant families, as Sen. Marco Rubio (R-FL) puts it, is that in some cases, the children are put in even more danger. Recently it was revealed that a Texas sheriff’s deputy at a family shelter sexually assaulted a 4-year-old migrant child. The mother, an undocumented immigrant, was being blackmailed to stay silent about the abuse or face deportation.
According to Trump’s new order, the Secretary of Defense will be responsible for the construction of the facilities.
“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 order reads. “The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.”
The government doesn’t have a stellar track record with constructing facilities that house children. According to an investigation from Reveal, the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement paid $3.4 billion dollars to private companies that house migrant children from 2014 to 2018. Of that amount, 44 percent of the funds went to companies facing serious allegations of child mistreatment.
The damage has been done
Trump’s executive order does not address what will happen to the more than 2,300 children who were separated from their families at the border as a result of the administration’s policy.
Officials at the Department of Health and Human Services confirmed Wednesday that the government will not make any special efforts to help these children find their families.
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
And what’s more, the government currently has no clear plan for how to reunite families either.