An ugly conundrum lies at the heart of the border crisis dominating our news coverage and social media feeds, complete with the sights and sounds of children separated from their parents: Under a 1997 settlement between the federal government and immigration activists, the government must choose between enforcing the law inhumanely and not enforcing it at all. The consent decree, known as the Flores agreement, was the product of nine years of litigation over the detention of unaccompanied minors apprehended crossing the border. It requires detained minors to be released as expeditiously as possible.

In 2015, the 9th Circuit interpreted Flores’ requirement that minors be released “without unnecessary delay” to mean that all minors—including those traveling with their families—must be released within 20 days. Therefore, if a family is apprehended at the border and claims asylum, Immigration and Customs Enforcement (ICE) must either: 1) detain the parents pending their asylum hearing and separate the children, or 2) release everyone and hope they show up for their hearing (many do not). In other words, the administration must choose between a policy that separates families and a policy that effectively opens the border.