President Trump abruptly reversed course Wednesday, signing an executive order ending family separations at the U.S.-Mexico border after a public uproar over the impact of his administration’s “zero tolerance” immigration policy.
The plan would keep families together in federal custody while awaiting prosecution for illegal border crossings, potentially violating a 1997 court settlement limiting the duration of child detentions.
“So we're going to have strong, very strong borders, but we’re going to keep the families together,” Trump said as he signed the order in the Oval Office. “I didn't like the sight or the feeling of families being separated.”
Trump had repeatedly defended his immigration crackdown, including forcibly separating migrant children from their parents after they crossed the border. But images of young children in tears, held in chain-link pens, set off an international outcry.
For days, Trump and his top administration officials were unwilling to unilaterally reverse the separation policy, insisting that congressional action was required.
“Congress and the courts created this problem, and Congress alone can fix it,” Homeland Security Secretary Kirstjen Nielsen said Monday. “Until then, we will enforce every law we have on the books to defend the sovereignty and security of the United States.”
The inaction sparked international outrage, including criticism from Pope Francis and opposition from world leaders.
Trump’s action came shortly after House Republican leaders vowed to bring broader immigration legislation up for votes Thursday to address the crisis, despite widespread skepticism that a bill could pass.
“We will be going through Congress. We’re working on a much more comprehensive bill,” said Trump, who was flanked by Vice President Pence and Nielsen. “What we have done today is we are keeping families together.”
House Republican leaders and more than two dozen lawmakers traveled to the White House on Wednesday afternoon in hopes of rallying support for broader immigration legislation that appeared short of the votes needed.
Separately, Attorney General Jeff Sessions met with Senate Republicans privately amid GOP fears about the political fallout from the separation policy. Upon leaving that meeting, Sessions said he had been “working with the White House and others all morning” on the family separation issue.
Trump’s said the order does not alter the “zero tolerance” policy itself that the administration put in place in April. Under that policy, the administration has sought to prosecute as many border-crossing offenses as possible, including those involving families with children.
Because the Justice Department can’t prosecute children along with their parents, the result of the zero-tolerance policy has been a sharp rise in the number of children detained separately.
On Tuesday, the Department of Homeland Security said 2,342 children have been separated from their parents since last month.
Trump’s executive order instructs DHS to keep families in custody “to the extent permitted by law and subject to the availability of appropriations,” language that points to the government’s deficit of detention space for parents with children.
ICE operates two large family detention centers in Texas and a smaller facility in Pennsylvania, with a combined capacity for about 3,000 beds.
As of June 9, the three facilities had nearly 2,600 of those beds occupied, according to the latest available ICE figures.
The agency’s network of immigration jails for single adults is much larger, because ICE leases detention facilities and vacant cells from states and counties across the country. But placing children in those facilities would run afoul of the 1997 “Flores Settlement” agreement that limits the government’s ability to keep children in detention and orders them to be placed in least-restrictive setting possible.
A subsequent ruling in 2016 bars the government from keeping children in family detention centers for more than 20 days.
ICE is already stretched to capacity with adult detainees. The agency has had an average daily population of 41,280 detainees during the government’s 2018 fiscal year, according to the latest figures, a number that exceeds what Congress has authorized DHS to spend.
An administration official with knowledge of the plan indicated that the Trump administration was anticipating lawsuits and preparing to litigate Flores in court, particularly if lawmakers fail to approve a legislative fix.
“It may be easier to overturn the Flores Settlement than get Congress to pass something,” said Mark Krikorian, director of the Center for Immigration Studies, a Washington think tank whose restrictionist views on immigration policy have won broad influence in the White House.
“Getting rid of the Flores Settlement is the quickest way to solve the problem,” Krikorian said. “The government has been faced with the choice of either splitting the family by detaining the parent and releasing the kid, or just letting the parent go too.”
Striking down the ruling became a goal of immigration hard-liners, particularly after a 2016 ruling by the 9th Circuit Court of Appeals limiting the government’s ability to keep children in detention for more than 20 days.
In most cases, that window is not enough time for those families to go before an immigration judge, so ICE has typically released families together with some form of electronic monitoring.
The Trump administration’s “zero tolerance” policy broke with that approach by separating families and sending adults to ICE jails while assigning migrant children to shelters run by the Department of Health and Human Services.
Trump’s executive order would instead keep entire families in ICE detention centers, most likely in violation of the 9th Circuit Court’s ruling on the Flores Settlement.
Trump’s plans to sign an executive order appeared to catch legislative leaders off guard.
At a news conference earlier Wednesday, House Speaker Paul D. Ryan said he remained hopeful that his chamber would pass a broader immigration bill Thursday that would include provisions aimed at ending the separations that have resulted from the “zero tolerance” policy.
“We do not want children taken away from their parents,” Ryan (R-Wis.) said. “We can enforce our immigration laws without tearing families apart . . . We are going to take action to keep families together while we enforce our immigration laws.”
Ryan and other GOP leaders, however, stopped short of predicting passage of a bill that would address other Republican priorities on immigration while also allowing children to remain with their parents while undergoing prosecution for illegally crossing the border.
Ryan said House leadership is not considering a narrower measure that would only address the family separation crisis, as some members of the chamber have advocated.
“Right now we’re focused on getting this bill passed,” he said. “If other things happen, we’ll cross those bridges when we get to it.”
House leaders have been considering two competing bills.
A so-called “compromise measure” would provide $25 billion for Trump’s long-sought border wall, offer a pathway to citizenship to young undocumented immigrants and keep migrant families together.
A competing, hard-line bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) would not guarantee “dreamers” a path to permanent legal residency, and includes controversial enforcement measures such as the mandatory use of a worker verification program.
According to three GOP officials familiar with a survey of House Republicans conducted after Trump’s speech, both bills remain well short of the necessary votes to pass. The compromise bill, in particular, is facing doubts from conservatives who are wary of voting for a more moderate bill that probably cannot pass the Senate intact, and that they fear Trump may ultimately abandon.
Some influential conservative policy groups have started weighing in against the compromise bill. Heritage Action for America announced Tuesday that it would score lawmakers on their votes, declaring, “Passing amnesty for millions of illegal immigrants right before a midterm election would be a grave political miscalculation.”
The issue has roiled Republicans in the Senate, where lawmakers are drafting narrow legislation to address the issue.
GOP senators have been coalescing around a framework that would allow families to be detained together, and would rework the docket of immigration cases so those families are sent to the front of the line of migrants waiting for a court hearing.
Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that he hoped the Senate could pass such a bill by the end of the week, although that timeline appeared optimistic.
Some Senate Republicans began publicly and privately pressuring the administration this week to change how the zero-tolerance policy was being enforced. Sen. Orrin G. Hatch (R-Utah) and a dozen other Senate Republicans urged Sessions in a letter to pause the family separations unilaterally.
Hatch’s staff also privately lobbied Ivanka Trump — the president’s daughter and senior adviser — and told her that they wanted to help Trump find a way out of the border crisis, according to a person familiar with those discussions. A handful of Senate Republicans, including Sen. James Lankford (R-Okla.), also reached out privately to various administration officials to halt the separations.
“I don’t like it,” Hatch said of the family separation crisis during an interview at the Capitol. “They can’t ignore what I’m saying because I’ve been the president’s strongest supporter, and they know that I’m the middle of everything.”
While House Republicans scrambled to count votes, Democrats continued to vent their outrage at the family separation policy that has united their party in opposition.
Before Trump’s announcement, several Democratic lawmakers brought immigrant children to the House floor as the chamber opened for business Wednesday, and they later headed outside to continue their protests against the separation practice — chanting “Shame! Shame!” and vowing to keep up public pressure against the policy.
“I cried last night when I heard those babies crying,” said Rep. John Lewis (D-Ga.). “It’s not right, it’s not fair, and it’s not just.”
On the Senate floor Wednesday morning, Minority Leader Charles E. Schumer (D-N.Y.) continued to urge Trump to take action to reverse his policy.
“This is President Trump’s responsibility,” he said. “He could fix it this morning — morning — if he actually wanted to fix it.”
International condemnation of the Trump administration policy has also continued to build.
Pope Francis is criticizing the separation of migrant families at the U.S.-Mexican Mexico border and saying that “populism” and “creating psychosis” are not the way to resolve migration problems, according to an interview published Wednesday.
Speaking to Reuters news agency, the pope said, “It’s not easy, but populism is not the solution.”
Answering questions from Parliament, meanwhile, British Prime Minister Theresa May said Wednesday that “the pictures of children being held in what appear to be cages are deeply disturbing. This is wrong. This is not something we agree with.”