Last summer, the country realized in horror that border authorities had been separating immigrant children from their parents, leaving the kids in inadequate and often dangerous federal housing facilities.
It was a true humanitarian crisis. While most of the press joined with Democrats in pinning the blame on Trump, the blame in fact rested on federal policy that had long predated Trump — namely, the Flores Settlement Agreement.
The Flores agreement, which essentially mandated family separation, will soon be history, thanks to Trump administration actions announced Wednesday. This change, if liberals don’t successfully block them in court, will allow the federal government to keep families together in residential facilities when they arrive at the border seeking asylum.
It’s hard to keep track amid the emotions and politics over “kids in cages,” so let’s recount the factors that have created the crisis.
Thousands of families have arrived at our southern border in the past couple of years seeking asylum, knowing that the very act of asylum-seeking, regardless of merit, entitles them to stay in the United States. Each of these undocumented migrants is thus owed a court date in which they can make the case that they deserve admission as asylees rather than going through the ordinary immigration process.
The Flores agreement, created by federal courts in 1997, prohibits Customs and Border Protection from holding children in detention for more than 20 days. But with our current flood of asylum-seekers, the backlog in immigration courts is much longer than 20 days. That leaves us with two options: Either remove the children from CBP facilities while we hold the parents there (family separation) or just let the entire family go and hope they show up for the hearing months down the line (catch and release).
The scrapping of Flores creates a third option: keep families together until they get their day in court.
While the details still await release in full, the new regulation appears to be both a humanitarian and a strategic improvement on its face.
Sadly, and cynically, this is being portrayed as an effort by Trump to detain migrants indefinitely. We doubt the Trump administration has any interest in indefinitely keeping people in overcrowded facilities that we can’t adequately equip or police. Yet, this is the theory among his critics. As MSNBC correspondent Jacob Soboroff put it on Twitter, “Detaining families indefinitely is always what Trump has wanted to do.”
Detaining families *indefinitely* is always what Trump has wanted to do.
A DHS official told me during separations it was the whole goal of ripping kids from parents — to force Congress to change the law to allow indefinite detention.
Now they’re trying to do it themselves. https://t.co/kjzE27ejGx
— Jacob Soboroff (@jacobsoboroff) August 21, 2019
A more sober analysis would reveal that the administration’s action is by far the best of three options. The first, under Flores, would require separating families while they await backlogged asylum proceedings. The second is what the Department of Homeland Security announced today, keeping families together while under supervision. The third option is a policy of open borders: simply not enforcing the border at all. We suspect this won’t fly either, because even the politicians who support it are embarrassed by it and refuse to admit it in public.
The details will be crucial: For starters, the new rule should guarantee far better conditions for family housing units than anything that is being provided today. But the general thrust of administration action deserves to be lauded by border hawks and immigration advocates alike.
Congress needs to act to better fund our border facilities, to increase the capacity of our immigration courts, and to get rid of the incentives for families with weak asylum claims to appear at our border.
The Trump administration is righting an egregious wrong. Regardless of political preference and irrespective of all political theater, that’s a good thing.
