Less than 24 hours after saying that only Congress could change the immigration law that requires authorities to separate the children of illegal immigrants from their parents, President Trump has reversed himself. The president announced today that he will sign an Executive Order “to keep families together.”
“We are going to sign an Executive Order in a little while to keep families together, but we have to maintain toughness,” President Trump said.
Trump signed the order in the Oval Office on Wednesday, telling reporters, “We're signing an executive order. I consider it to be a very important executive order. It's about keeping families together, while at the same time being sure we have a very powerful, very strong border.”
The Executive Order declares that the policy of the Trump Administration is “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” Trump instructs the Department of Homeland Security “to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members,” rather than transferring the children to the Department of Health and Human Services, unless keeping the family together would “pose a risk to the child’s welfare.” The order does not end the zero-tolerance policy of prosecuting all illegal immigrants.
It is not clear how the Executive Order will withstand the Flores Agreement. The 1997 court settlement requires the government to place illegal immigrant children with family members “without unnecessary delay” or hold the children in the “least restrictive setting appropriate to the minor’s age and special needs” otherwise.
As recently as yesterday, the president claimed that there was no legal way to avoid the separations. “Under current law, we have only two policy options to respond to this massive crisis,” Trump told the National Federation of Independent Businesses. “We can either release all illegal immigrant families [of] minors who show up at the border from Central America or we can arrest the adults for the federal crime of illegal entry. Those are the only two options, totally open borders for criminal prosecution for lawbreaking.”
“So, what I’m asking Congress to do is to give us a third option, which we have been requesting since last year — the legal authority to detain and promptly remove families together as a unit,” Trump continued. “This is the only solution to the border crisis.”
President Trump had claimed that the law mandated that children be separated from their parents, who were being arrested on immigration charges. Current law and the Flores Agreement also applied to previous administrations, but neither the Obama nor Bush Administration chose to systematically break up families. The Trump Administration’s zero-tolerance policy of prosecuting all illegal border crossers led to the systematic separation of families where previous administrations referred illegal immigrants to civil deportation hearings where the families could remain together. The Dallas News reports that approximately 2,000 children were separated from their parents between late April and the end of May under the new policy.
President Trump’s reversal is similar President Obama’s reversal on the so-called “Dreamers.” In 2010, when asked about the DREAM Act, Obama said, “I am not king. I can't do these things just by myself.” In 2011, he said, “[With] respect to the notion that I can just suspend deportations through executive order, that's just not the case.” The same year, he reiterated that he could not “just bypass Congress and change the (immigration) law myself. ... That's not how a democracy works.” In spite of all that, in 2012, Obama unilaterally implement the DACA program that suspended deportations and provided work authorizations for people who entered the country illegally as children.
The president’s reversal may be related to a new CNN poll that showed that Americans opposed the zero-tolerance policy by more than two-to-one. Prominent Republicans criticized the Administration on the issue and Republican congressmen were preparing plans to overturn the policy.
Even with the end to the separation policy, immigration will not disappear as a hot-button issue. There has still been no resolution to the DACA problem, many industries are experiencing a shortage of immigrant workers and there is still no funding for the “big, beautiful wall.”
Originally published on The Resurgent
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