Trump’s Executive Order Contains Many Loopholes

Trump’s Executive Order Contains Many Loopholes June 21, 2018

After I wrote the previous posts, we got the actual text of the executive order that Trump signed, which he said would end the family separation policy. While it might do that, there are many loopholes in that order that could allow the policy to continue for many, perhaps even most or all, of the families affected.

The main thrust of the executive order is the setting up of family detention centers, which would allow families to be kept together pending administrative hearings on the parents’ request for refugee or asylum status. The problem is that there is a court ruling in a case called Flores v. Sessions that says you cannot detain children with parents who are accused of a crime. This is precisely why neither Bush nor Obama automatically charged those who asked for refugee or asylum status with illegal border crossing; rather, they treated those cases as a civil matter, not a criminal one, as they should.

The order does instruct Attorney General Jeff Sessions to ask the court to modify the consent decree in Flores to allow this new policy to go into effect, but it’s highly unlikely that they will do so. The solution is not to lock up the parents and children together, it is to not lock up the parents at all.

Under Obama there was a program called the Family Case Management Program for families seeking refugee or asylum status. The families were kept together but not detained, and were assigned a case manager and a legal consultant to help them navigate the legal hurdles of the administrative hearing on their case. Trump ended that program a year ago and instituted the zero tolerance policy that led to where we are today. That program should be reinstated and expanded and it would fix the problem completely. And guess what? Those families did not disappear into the population despite not being detained. 99.6% of them showed up for their administrative hearings, so detention and charging them criminally is completely unnecessary.

The other big loophole here is that the order says that they will continue to detain families but try to detain them together “where appropriate and consistent with law and available resources.” That leaves a very big “out” for the administration to continue doing what it’s doing but pleading poverty — we can’t afford this, there’s no budget for these new family detention facilities, blame it all on Congress. Which is why Congress still needs to act here. They need to pass legislation that says you can’t criminally charge those seeking refugee or asylum status and you can’t detain them, period. Once they’ve gone through the process and been either approved or denied for that status, then and only then can you take action. And the only action you can take at that point is to deport them back if their request is rejected. If you’re going to deport them, there is no reason to charge them criminally as well for crossing the border illegally.

But if they don’t follow through on this, the public outcry is just going to grow and Republicans in Congress facing election battles in November will be in full revolt, knowing it could kill their campaigns. So despite those loopholes, it would be incredibly stupid of Trump not to follow through on this. That doesn’t mean he will, of course; incredibly stupid seems to be his default setting.

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