Republicans predicted Sunday that President Trump’s executive order on family separation would get rejected by a federal judge as early as this week, a move that would send Trump back to the drawing board on the issue of how to enforce U.S. immigration laws without splitting up families.
“I don’t think that the judge in the next week or couple of weeks will allow that longer detention,” said Sen. Jeff Flake on ABC News. “I think the Flores decision will stand.”
“And so I think another solution has to be found,” he said.
Trump last week issued an order saying that families will no longer be detained when they arrive illegally between border checkpoints, and instead will be held together while the adult immigrants are prosecuted for the crime of illegal entry. But that goes against the Flores settlement, which holds that children can only be detained for 20 days — Trump has said that settlement is the reason why some families had been separated.
When asked if Flake was certain that U.S. District Judge Dolly Gee in California would rule that Trump’s order violates the Flores settlement, he said simply, “yes.”
Flake was joined by Tom Bossert, Trump’s former homeland security adviser, who also said on ABC that he believes Trump’s order would be struck down.
[Related: Trump executive order relies on modification of 1997 federal court decision]
“This executive order the president put out to try to fix this problem is going to run headlong into the 9th Circuit judge that decided in 2015 that even detaining with parents is inhumane,” Bossert said.
“She called President Obama’s policy of detaining children and parents together,” he added. “There is no way this executive order survives first contact, because her view of President Trump will be harsher.”
But Bossert added that the settlement puts the federal government in a box, since it can’t effectively enforce laws against illegal entry without illegally splitting up families.
“The reality of the president’s messaging this week that was spot on is that this country has no choice under current law as interpreted by a judge but to catch and release,” he said. “I hope the judge realizes that, because she’s put us in a position where she’s let the green light to anybody from South and Central America to come here and bring a kid, and now she’s said, release them once they get here.”
Flake and Bossert split on what a middle ground option might be. Flake said early data show that putting an ankle bracelet on immigrants who enter with their families makes it far more likely that they will show up for their immigration court date once released, and indicated that’s an answer some in Congress are exploring.
But Bossert said it’s not yet clear to him that this could work.
In the meantime, Flake said President Trump himself has made it more difficult for Congress to legislate an answer, because he continues to deride Democrats. Even as Flake spoke, Trump tweeted a message saying Democrats need to “fix the laws.”
Democrats, fix the laws. Don’t RESIST. We are doing a far better job than Bush and Obama, but we need strength and security at the Border! Cannot accept all of the people trying to break into our Country. Strong Borders, No Crime!
— Donald J. Trump (@realDonaldTrump) June 24, 2018
“Congress has to fix this, and what is bothersome is the president’s rhetoric about the Democrats and their unwillingness to have any type of border security or control,” Flake said, noting that Trump has called his Democratic opponents “clowns” and “losers.”
“He ought to knock that off,” Flake said.
