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Trump's Border Separation Move Could Pose Legal Issue

Executive order would likely violate Flores settlement agreement
By Newser Editors,  Newser Staff
Posted Jun 20, 2018 11:36 AM CDT
Updated Jun 20, 2018 2:55 PM CDT

(Newser) – After weeks of outcry, President Trump on Wednesday signed an executive order to end the controversial practice of separating migrant children from their parents at the US border. The order declares that it is the administration's policy to "maintain family unity," including by detaining entire families together "where appropriate and consistent with law and available resources," CNN reports; children will still be removed if there is a concern for their welfare. (Read the order in full here.) The order, which sources say was put together by the White House, the Justice Department, and the Department of Homeland Security, directs the Pentagon and other agencies to find places families can be housed, and notes that families will be prioritized in the adjudication process.

  • Upon signing the order, Trump said that it would still ensure "we have a very powerful, very strong border." He said he's not backing down on that issue: "The border is just as tough. But we do want to keep families together. We are keeping the family together."
  • In comments made at the White House earlier Wednesday, Trump had signaled the move, saying "we want to keep families together, I'll be signing something in a little while that's going to do that." He said his move would be "somewhat preemptive and will ultimately be matched by legislation I'm sure," Politico reported.

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  • NPR notes Trump "is reversing his policy despite the fact that administration officials have insisted for days that only Congress could fix the problem." Indeed, in late May Trump tweeted: "Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border." The AP reports the House planned to vote on a pair of rival immigration bills Wednesday; neither had good prospects of passing.
  • As NPR reported, Trump was referencing the Flores Settlement Agreement, a legal settlement in place since 1997 that is not a law but has the force of one. The Washington Post reports Congress does have the authority to pass a law that overrides the terms of the consent decree, which mandates that kids be released from family detention centers within 20 days. It also stipulates they be held in the "least-restrictive setting possible," per the Post.
  • The Post reports Trump's expected executive order would likely violate the agreement, and a source within the administration tells the paper that if Congress can't handle the situation the administration is willing to go to court to deal with any lawsuits. It adds that immigration hard-liners are no fans of the settlement and would like to see it overturned. Their gripe: Families who aren't seen by an immigration judge within 20 days are typically released by ICE, which then relies on electronic monitoring. CNN notes that Trump's move "is almost certain to face immediate legal action" if it allows the government to keep children detained with their families indefinitely.
  • The New York Times adds the Flores agreement "prevented former President Barack Obama from detaining families together during a similar flood of illegal immigration two years ago." The Times in 2015 reported on a federal judge's ruling that the then-administration's holding of children and their mothers violated the settlement. Much more on that here.
  • Ann Coulter, who has been vocal on the issue, took to Twitter after Trump spoke before signing the order, tweeting, "Liberals cried, America died."
  • The ACLU released a statement following Trump's signing of the order. It reads, in part: "This executive order would replace one crisis for another. Children don’t belong in jail at all, even with their parents, under any set of circumstances. If the president thinks placing families in jail indefinitely is what people have been asking for, he is grossly mistaken."
(Read more border separations stories.)

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