Fact Check: Did Democrats Pass a Law Separating Children and Adults at the Southern Border?

This came after Trump told Homeland Security Secretary Kirstjen Nielsen in May, “I know what you’re going through right now with families is very tough, but those are the bad laws that the Democrats gave us. We have to break up families.”

Senate Judiciary Committee Chairman Chuck Grassley also weighed in on the predicament, citing a need to repeal “the Flores 1997 court decision” in order to stop the separation of families at the border.

What’s the truth?

In April, the Trump administration issued a “zero tolerance” policy at the border, a policy responsible for separating some 2,000 children from the adults they crossed over with. Attorney General Jeff Sessions said in May that “if you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law.”

But current law does not mandate family separation at the border — there is simply no federal statute that requires such activity, which is made obvious by the lack of enforcement of this policy prior to April. The Trump administration’s policy was not dictated to it by Congress, past or present, by Republicans or by Democrats. However, current law does not prevent these adults from being separated from the children they brought, either.

Much of the argument comes down to the 1997 Flores settlement to a class-action lawsuit from the 1980s surrounding the “detention and release” of minors taken into custody by the Immigration and Naturalization Service (INS). The settlement demands the release of children to their parents, relatives, etc. without unnecessary delay. If this placement is unavailable — e.g., if the child’s parent is a threat to them or is placed in criminal proceedings, or the supposed parent is only posing as one — the government must put the child in the “least restrictive” accommodations that are appropriate for their needs.

Before the “zero tolerance” policy, illegal immigrants who had crossed the border with children were not often prosecuted but placed in family detention centers (or released) with the order to attend a future court date or await deportation. Now that the adults are being prosecuted and held for their criminal proceedings, the children are subsequently separated and detained in appropriate accommodations outlined by the Flores settlement.

As noted by a fact-check from the New York Times, the Obama administration, during a sharp increase in family migration from South America, utilized family detention centers, which attracted lawsuits claiming “that doing so had breached the Flores settlement by not releasing children swiftly.”

Rich Lowry argues in National Review that if the Flores settlement were reversed there would be no direct need to separate families. “Congress can change the rules so the Flores consent decree will no longer apply,” he notes, “and it can appropriate more money for family shelters at the border.” Current law does not demand that parents be separated from their children but makes prosecuting these adults nigh impossible without separation.

As long as the “zero tolerance” policy set forth from the Trump administration is in operation under current law, adults will be separated from the children they bring while crossing the border, either illegally or to seek asylum. It is incorrect to place the blame on a law passed by Democrats, as it is the “zero tolerance” policy from the current administration that began, through prosecution, separating children and adults who illegally crossed the border together.

If you have questions about this fact check, or would like to submit a request for another fact check, email Holmes Lybrand at [email protected] or the Weekly Standard at [email protected]. For details on TWS Fact Check, see our explainer here.