President Trump on Wednesday signed an executive order that allows for families to be detained together at the border while the parents await prosecution. The move was unexpected considering how the administration had spent the past week responding to reports of children being separated from their parents by defiantly maintaining there was nothing that could be done to prevent it. The bipartisan outrage finally became too intense for the administration to withstand.
If anyone was under the impression the order was the result of Trump suddenly swelling up with compassion for migrant children, the president has since doubled down on his hardline stance toward immigration. On Wednesday morning, he tweeted that he’s not a huge fan of the the concept of asylum.
We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password.
— Donald J. Trump (@realDonaldTrump) June 21, 2018
Part of the administration’s defense of the “zero tolerance” policy has been that the need to “weed out “immigrants falsely seeking asylum. But Trump has now made clear – if it wasn’t clear already – that there are no circumstances under which the United States should be considered a refuge, and that the policy was never about enforcing “the rule of law,” which allows for asylum. Trump has made clear that the policy is about preventing the “infestation” of the United States.
Given that the executive order was drafted hastily and largely as a PR move for the administration, it’s important to understand what it actually means for the situation at the border.
1. So, no more family separations?
The administration’s “zero tolerance” policy holds that anyone crossing the border illegally – even those seeking asylum – will be sent to criminal court. Prior to Trump signing the executive order, parents were taken into the custody of the Department of Justice to await prosecution, while children were put into camps run by the Department of Homeland Security. Now, the DHS will house both children and their parents as they wait for their cases to be resolved. It isn’t that simple, though.
In 1997, a federal court in California ruled that migrant children crossing the border couldn’t be held by the government for an unreasonable amount of time, which under the Obama administration was determined to be 20 days. Part of Trump’s executive order, then, calls for Attorney General Session to request that the settlement be amended so that children can be detained with their parents for as long as it takes for their cases to be resolved. If Sessions’ request is denied, which many believe is likely, Congress will need to step in to allow the indefinite detention of families who have crossed the border. Asylum cases typically take months to settle, so 20 days isn’t going to cut it.
Because of the added stress that housing entire families together will place on the DHS, the executive order has called for the courts to prioritize family immigration cases. On Wednesday night, it was reported that the Justice Department had requested that the Pentagon send active-duty military lawyers to the border to assist with the cases. The need to process cases as quickly as possible has led to concerns over whether asylum cases will be handled fairly and thoroughly.
2. Does the DHS have room for all these families?
No, it doesn’t. At the rate immigrants are currently crossing the border, the DHS is projected to run out of beds in just over a week. The executive order instructs other federal agencies to prepare to accommodate the influx of families that will not be detained by the government, but this will come at tremendous expense to taxpayers. Because it is well over twice as expensive to house migrants in tent cities than in brick-and-mortar facilities, House Speaker Paul Ryan has proposed a $6.8 billion border infrastructure bill that would result in the construction of family detention centers.
3. What about the over 2,300 children who have already been separated from their parents?
They’re essentially out of luck. The executive order does not address the fate of those who have been separated from their parents since the “zero tolerance” policy took effect. “For the minors currently in the unaccompanied alien children program, the sponsorship process will proceed as usual,” Health and Human Services spokesperson Kenneth Wolfe said Wednesday. Brian Marriott, one of the department’s senior directors of communications later clarified that “it’s still very early” and that they are “awaiting guidance on the matter.”
The current procedure holds for the HHS to find temporary homes for the children, whether with a relative already living in the United States or in foster care. This process has been fraught, and many fear some children will never be reunited with the parents.
NEW: I just spoke with the former head of US Immigration & Customs Enforcement (ICE) – He tells me that he expects hundreds of separated children will never be reunited with their parents. They will be lost in the system. Orphaned by the US Govt’.
— Jackson Proskow (@JProskowGlobal) June 19, 2018
As Chief of Staff John Kelly assured those concerned about the policy in May: “The children will be taken care of – put into foster care or whatever.”