Increased scrutiny of administration policy comes as House Republicans are already locked in a battle over the fate of young, undocumented immigrants that has driven a significant wedge into their ranks, plunging Washington deeper into a divisive fight over immigration that was not on the political radar barely a month ago.
Concerned over the new border practice, Sen. James Lankford (R-Okla.) said he has requested information from the Department of Homeland Security about why families are being separated and other details about the policy.
“There is no easy set of answers here,” Lankford said. “You don’t want a child trafficked, you don’t want a child traveling with someone who’s not a family member and you don’t know what the relationship is there, but you also don’t want to separate families. So we’re asking questions.”
No law requires that migrant families be separated at the border, as Trump has falsely asserted in recent tweets. In explaining Trump’s comments, administration officials have pointed to an anti-trafficking law and court rulings that, together, limit the detention of children and put unaccompanied migrant children in the care of the Department of Health and Human Services as they await court hearings.
That means that under the administration’s “zero-tolerance” policy detailed last month, every adult who tries to cross the border illegally will be referred to the Justice Department for prosecution, in effect separating children from adults with whom they are traveling because minors cannot be held in criminal detention.
“Only in Washington can someone who is the cause of the separation blame someone else, and only under the Trumpian world could that happen,” Sen. Robert Menendez (D-N.J.) said Tuesday. “The reality is, is that there is no law that requires that. It is purely a decision by the Trump administration. It is the Trump administration that is tearing families apart. At the end of the day, you can only lie so much.”
The two immigration issues confronting Washington — a legislative remedy for young undocumented immigrants, as well as administration efforts to confront an increase in migrant arrivals at the border — had largely run on separate tracks. But a top White House official said Tuesday that the administration was urging House Republicans to deal with the migrant issue in their ongoing talks on “dreamers.”
“The Flores issue is one that we’ve asked them to address,” White House legislative director Marc Short said in an interview Tuesday, referring to the 1997 settlement that requires government officials to hold migrant children in the least restrictive conditions available.
Short added: “We recognize that not everything will get fixed here, but we think that one’s important enough.”
But that may further complicate an already messy fight that has unfolded within House Republican ranks since a band of renegade GOP moderates launched an effort to circumvent their leadership and force votes on immigration bills.
Those moderate Republicans inched closer to their goal Tuesday when two Texas Democrats who had previously refused to sign their “discharge petition” announced that they had changed their minds after meeting with dreamers and clergy in their districts along the U.S.-Mexico border. Reps. Vicente Gonzalez and Filemon Vela had previously refused to join the effort out of fear that any resulting bill would authorize money for the border wall that they strongly oppose.
“No means no, until you talk to the bishop for an hour and a half,” Vela said.
With 190 other Democrats and 23 Republicans already having signed the petition, that leaves the discharge backers three members short of success.
GOP leaders have urged lawmakers to hold off on signing the petition until after a Republican-only meeting Thursday at the Capitol, where they are hoping to lay out an alternative course that would give the moderates a vote on a bill meeting their demands — a path to permanent legal residence, and eventually citizenship, for the dreamers.
But conservative hard-liners continue to object to votes on any legislation that would create a “special path to citizenship” for anyone in the country illegally, whether the person entered as an adult or child.
White House officials, according to congressional aides familiar with the discussions, have been engaged in the talks involving House Republicans to ensure that Trump’s priorities are dealt with in any legislation that comes to a vote, including an end to so-called “catch and release” policies whereby federal authorities have for years generally allowed immigration offenders to remain in the United States pending court hearings rather than detaining them or returning them to their home countries.
Administration officials continued Tuesday to defend their “zero tolerance” policy on the border, even under heated questioning from fellow conservatives about the effect on the migrant children, some as young as infants and toddlers.
“We don’t want to do this at all,” Attorney General Jeff Sessions said Tuesday on conservative commentator Hugh Hewitt’s radio show. “If people don’t want to be separated from their children, they should not bring them with them.”
But several Senate Republicans were clearly uncomfortable with the impact of the practice, which has put HHS facilities at near capacity with migrant children at a time when illegal border crossings may only continue to rise. Administration officials and Border Patrol agents indicated late last week that the number of migrants trying to cross illegally into the United States remained high in May.
“I don’t think it’s right to separate families this way, particularly those in asylum cases. They haven’t broken laws. They’re availing themselves of the legal avenues that are there,” Sen. Jeff Flake (R-Ariz.) said. “This isn’t the responsibility or the fault of any one administration. This is a number of policies.”
Sen. Rob Portman (R-Ohio), who has led hearings on the issue of unaccompanied migrant children, said he was working on legislation meant to minimize potential exposure to abuse or trafficking, while trying to improve the chance that the minors would show up for their court hearings.
“As a rule, I think it’s bad policy to separate the children from the families,” Portman said. “But I think we need to help the administration on this Flores decision. I think it’ll have to be legislation.”
Others staunchly defended the administration’s border policy: “I agree with Secretary [Kirstjen] Nielsen when she says law enforcement separates a parent from their children all the time when you’re arresting someone for committing a crime, which is what people are doing,” said Sen. Ron Johnson (R-Wis.), who chairs the Senate committee overseeing the Department of Homeland Security.
Democrats, meanwhile, have grown only angrier at the administration as it defends its practice.
Sen. Jeff Merkley (D-Ore.), who tried to gain access to a migrant facility over the weekend, said Tuesday he was drafting legislation that would give lawmakers access within 24 hours to a migrant center run by the government. Though he was able to tour a DHS processing center for the migrants, Merkley had been blocked from a separate facility overseen by Health and Human Services that was holding children.
An official with HHS’s Administration for Children and Families said Merkley had tried to enter the shelter unexpectedly, and “no one who arrives unannounced at one of our shelters demanding access to the children in our care will be permitted, even those claiming to be U.S. senators.”
“Members of Congress have top-secret clearances,” Merkley said. “It shouldn’t be secret as to how we’re treating children inside our borders.”