As The Post’s report mentions, the order likely will lead to violations of the 1997 “Flores” settlement, which prohibits detaining children beyond 20 days. It seems the anti-immigrant hard-liners have decided to fight Flores, the result being the incarceration of families for weeks or even months. Moreover, “U.S. Immigration and Customs Enforcement (ICE) operates two large detention centers for families in Texas and a smaller one in Pennsylvania, but their combined capacity is about 3,000 beds. As of mid-June, the three centers were nearly full, meaning ICE would potentially need to place children in its much larger network of immigration jails for adults. That would most likely violate the [settlement] agreement that limits the government’s ability to keep children in detention and orders them to be placed in [the] least-restrictive setting possible.”
It’s absurd to turn around and fight Flores when the problem is the draconian policy that requires mass housing, feeding and care of immigrant families. The administration still has no real plans to address that financial and logistical problem before locking up immigrants, including asylum seekers. (It would be as if the federal government turned jaywalking into a felony and then built no facilities to hold violators.)
As a political matter, Trump once more turns his sycophantic spinners into chumps. They spent days insisting only Congress could fix this. That was a lie, as the executive order demonstrates. The Post’s Aaron Blake explains: “It’s at once an admission that the politics of the issue had gotten out of hand and that the administration’s arguments were completely dishonest. Virtually everything it said about the policy is tossed aside with this executive action. It’s the political equivalent of waving the white flag and the legal equivalent of confessing to making false statements.”
Unfortunately, few interviewers will press the Trump team on their lies, who will quickly shift to the “Problem solved!” talking point. Let us not forget, however, that the president, Department of Homeland Secretary Kirstjen Nielsen and the many Trump apologists in Congress and on Fox News and other conservative outlets have lost all credibility on the issue. Their behavior throughout has shocked Americans’ collective conscience.
We are also left with question as to whether the “zero tolerance” policy is constitutional as it is being implemented and whether the administration is equipped to care — at huge taxpayer expense — for those who came here desperate to escape from their home countries. There was already a significant issue as to whether separating children was constitutionally permissible; the question of whether their new housing meets constitutional standards now will be litigated, no doubt. Simply putting children with their parents does not end the question of the constitutionality of their and their family’s detention for an indefinite period of time.
Let’s not lose track in discussing legalities of the human toll that Trump’s “zero tolerance” policy is taking. No other administration has suspended prosecutorial discretion to incarcerate thousands of people (some with children and some without) for no other reason than trying to escape hardship. Until we have a sufficiently large and competent immigration system to process these people, we have no business detaining them (kids or no kids) in facilities never meant to be inhabited for any length of time.
One final point: Each and every child taken into U.S. custody must be accounted for and returned to his or her parent. Losing or orphaning hundreds of children is its own form of child abuse and should not be tolerated. Until all children are reunited with their families, and until children as well as adults are provided with adequate housing, food, medical care and so on, this remains an ongoing human-rights disaster.