WHEN THE Obama administration argued, in 2015, that an influx of migrant families illegally entering the country was justification for detaining the families indefinitely, federal courts rejected that stance out of hand. Now the Trump administration is making a similar argument with a fresh twist: that a new court ruling ordering that separated children be promptly reunited with their parents amounts to a green light for federal officials to detain them — together.
That’s a neat bit of lawyerly jujitsu. It attempts to turn a federal judge’s reunification ruling last week, based partly on grounds of compassion, into a rationale for extending the current administration’s cruel crusade against migrant families. As a legal matter, it’s also unsupportable.
The current case, like the one in 2015, runs aground on the shoals of a two-decade-old legal settlement that governs the government’s treatment of underage migrants. Among the requirements of the 1997 accord, known as the Flores settlement, is that immigrant children be released from custody whenever possible “without unnecessary delay,” and that when they are held, it be in state-licensed day-care facilities.
U.S. District Judge Dolly M. Gee, who rebuffed the Obama administration in 2015, ruled then that the Flores settlement’s mandate that minors be released “without unnecessary delay” meant most children must be freed within 20 days, unless doing so would put them or others at risk. The Trump administration now insists that delays have been rendered “necessary” by another federal district court judge, Dana M. Sabraw, who ruled June 26 that children separated from their parents must be promptly reunited with them. If the government is required to reunify and keep families together, Justice Department lawyers contend, then the government will do just that — in detention pending the outcome of their immigration or asylum cases, which typically take months or years to resolve.
The government’s argument is too clever by half. There is no requirement that migrant parents be detained while their cases are resolved; in fact, it wasn’t usual for previous administrations to do so and was adopted by the Trump administration only in May with its assertion of a zero-tolerance policy. There are effective means of ensuring that immigrants who are released pending the adjudication of their cases show up for their court hearings — they include electronic ankle bracelets; telephonic contacts with voice-recognition technology; and mobile phone app check-ins.
Moreover, if immigrant parents make the agonizing decision to call the administration’s bluff by opting to keep their children with them in detention, that will likely violate the Flores requirement that children be held in state-licensed day-care facilities. Mindful of that stricture, the administration has asked Ms. Gee to waive that requirement, which is critical to protect children’s well-being.
The Flores settlement was impelled by abundant evidence that migrant children were suffering owing to long detentions in facilities ill-suited to minors. Unfazed by that history, and by the legal requirements stemming from it, the Trump administration proposes to revive long-discredited practices. Its position is antithetical to American values, offensive to the law and an affront to decency.