Updated on June 20 at 5:18 p.m.
Seeking to quell one of the most volatile political tempests of his stormy presidency, Donald Trump on Wednesday signed an executive order he said was intended to end the separation of children from parents arrested illegally entering the United States by directing that youths be held with adults.
“We’re going to have strong borders but we’re going to keep the families together,” Trump said in brief remarks in the Oval Office. “I didn’t like the sight or the feeling of families being separated.”
The order keeps in place the “zero tolerance” policy for people crossing the border enacted last month. It appears first and foremost designed to quell a public uproar over the White House’s own policy choices. Whether it is feasible as policy, or materially changes conditions at the border, remains unknown.
“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,” the order states. “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.”
The directive raises a passel of new questions, and it’s not yet clear how it will function or what will change in practice. It appears likely that the order would violate a 1997 government agreement not to hold immigrant children, meaning that in the name of enforcing the law, the White House could be breaking it. Furthermore, the new order contradicts the president’s repeated claim that only Congress could fix the problem, and may paralyze efforts in Congress to end separations legislatively.
The current drama began in May, when Attorney General Jeff Sessions announced that under a new policy, all adults caught crossing the border would be held for criminal prosecution. Under a 1997 court settlement called the Flores agreement, however, children must be kept in the least-restrictive setting possible, effectively barring incarceration of children alongside their parents. As a result, the Trump administration has separated families. The change was an example of prosecutorial discretion: Previous administrations for the most part declined to criminally prosecute first-time border crossers; the Trump administration made the opposite decision, which was legal but, it turned out, politically perilous.
The order is Trump’s latest move in a zig-zag of often contradictory messages. Initially, and for some time afterward, he falsely claimed that the separations were the result of a law passed by Democrats. No such law exists. He also repeatedly said that only Congress could solve the separations. Other officials, including Homeland Security Secretary Kirstjen Nielsen, insisted that there was no policy to separate families, even as others, including Sessions, Chief of Staff John Kelly, and senior adviser Stephen Miller, defended the policy as justified and an effective deterrent. Then, on Tuesday, Trump flipped to forcefully defending the policy. “We must always arrest people coming into our Country illegally,” he tweeted. But behind the scenes, the pressure was building on Trump to take action.
Still, the action he took Wednesday is confusing, and confused. Mechanically, it uses an executive order piled atop the policy Sessions enacted in May, an ever more precarious structure. Having argued variously that there was no policy of separating families or that only Congress was able to solve the problem, Trump’s executive order suddenly acknowledges the matter is under executive-branch discretion and that Congress is not the only body that can fix it.
Legally, however, it’s unclear whether the executive order will withstand scrutiny. While Congress could pass a law that would circumvent the 1997 Flores agreement, the executive branch remains bound by the settlement. Trump’s order decrees that rather than be separated, children should be kept with their parents who are detained. The order states that the government will ask a court to modify the Flores agreement, but detaining children with parents almost certainly violates the Flores agreement, as Flores v. Lynch, a 2016 court ruling against the Obama administration, stated.
In 2014, grappling with border crossings, Obama’s Department of Homeland Security decided to open family detention centers near the U.S. border with Mexico. The action was challenged in court as a violation of the Flores agreement. The government argued that while the settlement said that unaccompanied minors crossing the borders had to be kept in the least restrictive setting, accompanied minors were exempt and could be detained with their parents.
The Ninth Circuit Court of Appeals disagreed, saying that Flores applied equally to accompanied and unaccompanied children. But the court said parents could still be held. In other words, the court said that family separations were legal. Still, the Obama administration decided against ordering such separations, opting to close the centers and let parents go, sometimes with GPS bracelets to track them. It is not yet clear why the Trump team believes the new executive order does not violate the Flores agreement in the same way.
Meanwhile, Trump’s executive order is likely to overturn efforts in Congress to deal with separations. As my colleague Elaina Plott reports, it seems unlikely that the Republicans who control the House could agree on a bill. Presidential action will only make that agreement harder, because legislators would just as soon not have to act, and the executive order takes the pressure off them. (Trump, of course, had been hoping Congress would do the same for him.) Then again, if the executive order is challenged in court and the result is the same as Flores v. Lynch, the game will reset and the ball could be back in Congress’s hands. The Trump administration would have to restart separations, release families as Obama did, or convince Congress to act.
The weeks-long drama looks like the latest self-inflicted wound by the Trump administration. Before the separations came to dominate the news, the president was enjoying some of the highest approval ratings of his presidency, buoyed by positive feelings about his summit with North Korean dictator Kim Jong Un.
Instead of coasting on that, Trump has spent a week trying to deal with a deeply unpopular imbroglio. In any other administration, this would be unfathomable. In this one, however, there’s a persuasive case that this is exactly what some insiders, and especially Miller, desired. It is difficult to understand how Trump comes out of this crisis stronger, especially after abruptly surrendering with the executive order, but he has withstood body blows before. An indication of where things are headed could come soon enough: The White House is reportedly planning an all-out blitz on hardline immigration policies before the November midterms, giving voters a chance to render their verdict.