“It’s the law, and that’s what the law states.”
— White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14, 2018
The Trump administration seems to be caught inside a “Twilight Zone” episode, insisting without evidence that its own policy of separating undocumented immigrant children from their parents is somehow a long-standing law and that any blame should go to Democrats.
The president got this ball rolling himself in a series of tweets and statements over the past few months.
“We have to break up families. The Democrats gave us that law,” Trump said during a roundtable on sanctuary cities in California on May 16. “It’s a horrible thing where you have to break up families. The Democrats gave us that law, and they don’t want to do anything about it.”
These claims are violently divorced from reality, as we’ve explained previously. Alas, White House press secretary Sarah Huckabee Sanders seems to have missed or disregarded our fact-check.
“It’s the law, and that’s what the law states,” she said in a briefing with reporters June 14. (No law says this.)
“It doesn’t have to be the law,” she continued. (It’s not.) “And the president has actually called on Democrats in Congress to fix those loopholes. The Democrats have failed to come to the table, failed to help this president close these loopholes and fix this problem.”
Trump needs 60 votes in the Senate, meaning he needs all Republicans and at least nine Democrats, to clear the way for a filibuster-proof immigration bill. But that’s assuming he gets all 51 Republicans on board, which the White House could not gather the last time it tried to close some of the “loopholes” Sanders referenced.
Reporters at the June 14 briefing fact-checked Sanders on the spot, but she stuck to her guns.
“First of all, there is no law that requires families be separated at the border,” one reporter told Sanders. “This was the administration’s choice to move from civil matters on immigration, on to criminal, to criminally prosecute people who come across the border illegally. … So why did the administration find that this was necessary?”
Sanders: “Again, the laws are the ones that have been on the books for over a decade, and the president is enforcing them. We would like to … fix our immigration problem. However, until Democrats are willing to actually fix this problem, it’s going to continue.”
What laws is she talking about? In a separate briefing with reporters May 29, a senior policy adviser to Trump, Stephen Miller, fleshed out the details of the administration’s rationale.
Miller mentioned the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, a bipartisan law signed by President George W. Bush and championed by then-Sen. Sam Brownback (R-Kan.), who is now the U.S. ambassador at large for international religious freedom in Trump’s State Department.
The TVPRA is meant to give safe harbor to victims of human trafficking and says unaccompanied children “are exempt from prompt return to their home country,” unless they come from Canada or Mexico, according to the Department of Homeland Security. Children fleeing violence in El Salvador, Guatemala and Honduras are covered by this law.
Miller also mentioned the “Flores settlement” from 1997. This legal agreement struck by President Bill Clinton’s administration requires the federal government to release rather than detain undocumented immigrant children, first to their parents if possible, to other adult relatives if not, and to licensed programs willing to accept custody if no relatives are available.
A federal judge in California ruled in 2015 that the Flores settlement covered all children in immigration officials’ custody, regardless of whether they were apprehended at the border alone or with family members. The judge’s ruling also covered any accompanying parents. But the U.S. Court of Appeals for the 9th Circuit reversed the latter part of the ruling and said the Flores settlement required only that children, not parents, be released. Therefore, the government is required to keep immigrant children and their parents together only for a limited time.
Although the Flores settlement doesn’t cover parents, none of these legal developments requires the Trump administration to separate them from their kids. Instead, separations are rising in large part because of a “zero-tolerance” policy implemented by Attorney General Jeff Sessions. In April, Sessions directed prosecutors to charge as many illegal entry offenses as possible. This policy is a choice. Sessions could rescind it as easily as he instituted it.
Although the government has not disclosed how many children have been separated from their parents as a result of the new measures, the Department of Health and Human Services said in May that it had 10,773 migrant children in its custody, up from 8,886 on April 29.
So, on one hand, the Flores settlement and the TVPRA require that children be released. On the other, Sessions’s zero-tolerance policy subjects any accompanying parents to criminal prosecution and eventual deportation.
Laying this on Democrats does not track with reality. The TVPRA was signed by Bush, a Republican, and the Flores settlement is a court-approved agreement. It’s not a law; Congress could overwrite it if it wanted to. The bottom line is that nothing required the Trump administration to separate children from their parents until Sessions’s zero-tolerance policy made it a practical necessity.
After this fact-check was published, a White House official expanded on Sanders’s comments. The law requires U.S. officials to prosecute offenses, and entering the country illegally is an offense that President Barack Obama’s administration largely declined to prosecute as hundreds of thousands of Central American immigrants entered the United States beginning in 2013, the official said. The Flores settlement gives special dispensation to children, requiring that they be placed with relatives or in “least restrictive” settings, but it doesn’t cover their parents. Moreover, even if the Trump administration did not separate families, there is not enough space to detain families together, the official added.
This is much more nuanced than what Sanders or Trump said, but it doesn’t support the assertion that specific laws say the government must separate families at the border.
It’s noteworthy that Sessions himself does not shy away from the effect the zero-tolerance policy has on undocumented immigrant families, and doesn’t attempt to blame Democrats, like Trump does. In fact, Sessions has castigated parents who try to enter the United States with their children in tow, because the journey is often rife with risks.
“If you bring a child, it is still an unlawful act,” Sessions said in a speech June 7. “You don’t get immunity if [you] bring a child with you. … Hundreds of illegal aliens die every year trying to make it to this country. In many cases, children are trafficked, abused or recruited by criminal gangs. No one should subject their child to this treacherous journey.”
Many of these families are fleeing deadly violence in their home countries, particularly in El Salvador, Guatemala and Honduras.
Sessions also said, “Because of the Flores consent decree and a Ninth Circuit court decision, ICE can only keep families detained together for a very short period of time.” But as we’ve explained, this is a reach. Neither the Flores agreement nor the 9th Circuit ruling requires family separations; what they do require is special accommodations for children.
“Look, I hope that we don’t have to separate any more children from any more adults,” Sessions said. “But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn.”
After being criticized by the U.S. Conference of Catholic Bishops and other clergy, Sessions made a religious argument for separating families.
“Illegal entry into the United States is a crime — as it should be,” he said June 14. “Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order.”
Asked about these comments, Sanders said at the briefing: “I can say that it is very biblical to enforce the law. That is actually repeated a number of times throughout the Bible.”
The Fact Checker doesn’t make it a habit to go around quoting Bible verses. But since Sessions and Sanders brought it up, the Bible also says: “When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt” (Leviticus 19:33-34). And it says that “each of you must put off falsehood and speak truthfully to your neighbor, for we are all members of one body” (Ephesians 4:25).
Update: President Trump took reporters’ questions June 15, the day after Sanders’s comments at the news briefing. He once again repeated the false claim that a Democratic law is forcing his administration to separate undocumented immigrant children from their parents.
Trump said: “I hate the children being taken away. The Democrats have to change their law. That’s their law.”
As we’ve noted, the president would need 60 votes in the Senate to clear the way for an immigration bill, which means he would need some Democrats. But we don’t see how this supports Trump’s argument that Democrats instituted his administration’s zero-tolerance policy.
The Fact Checker Recidivism Watch tracks politicians who repeat claims that we have previously found to be incorrect or false. These posts are summaries of previous findings, with links to the original fact-check. We welcome reader suggestions.
Send us facts to check by filling out this form
Keep tabs on Trump’s promises with our Trump Promise Tracker
Sign up for The Fact Checker weekly newsletter