Trump’s Immigration Executive Order Doesn’t Let Congress Off The Hook

The order is likely to face litigation -- putting the onus on lawmakers to keep detained families together.
President Donald Trump signs an executive order on immigration policy on June 20, 2018, as Department of Homeland Security Secretary Kirstjen Nielsen and Vice President Mike Pence look on.
President Donald Trump signs an executive order on immigration policy on June 20, 2018, as Department of Homeland Security Secretary Kirstjen Nielsen and Vice President Mike Pence look on.
Yuri Gripas/Reuters

WASHINGTON ― President Donald Trump may have bought Congress some time to act on family separations when he signed an executive order on Wednesday calling for an expansion of family immigrant detention to prevent parents and kids from being split up at the border.

But it likely won’t last long, thanks to an expected legal battle.

Rather than simply reversing his administration’s zero tolerance policy, as members of both parties have called for, Trump opted for an alternative that could create an equally troubling situation: the indefinite detention of entire families together while parents are undergoing prosecution and then immigration proceedings.

But Trump’s order faces an uphill battle in court, based on a court settlement and ensuing orders that require the government to release child detainees promptly, typically limiting family immigrant detention to about 20 days. The Trump administration cited the restriction when it announced its zero tolerance policy, which called for prosecuting adult migrants for illegal entry even if it meant separating them from their kids. Trump’s executive order instructs the attorney general to seek a change to the court settlement so children can be detained for longer with their parents.

The good news for lawmakers is that they now have some political breathing room to reach consensus on a highly controversial issue that has resulted in thousands of children and toddlers being detained and separated from their parents.

The bad news is that even the administration acknowledges it’s not a permanent fix.

“Congress needs to legislate,” Department of Homeland Security Secretary Kirstjen Nielsen told reporters after leaving a meeting with Republicans on Capitol Hill.

“I see this as giving us the opportunity to set the rules of the road in this area because I don’t know how long the executive order will be in effect,” added Sen. Susan Collins (R-Maine). “I think legislation is still a good idea, but certainly it’s a positive step forward if the executive order says children will no longer be separate from their families.”

The bad news, however, may be that Trump’s executive order deflates some of the urgency surrounding the issue. Congress doesn’t have a great track record for producing legislation without a specific deadline, especially on a controversial topic like immigration. For example, young undocumented immigrants who came to the country as children, known as Dreamers, still face legal limbo because lawmakers failed to codify protections for them when Trump ended President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program.

“This is a place where, when something is no longer an emergency ― you saw it with DACA ― it kind of goes away because there are so many other issues going on,” Sen. Marco Rubio (R-Fla.) said Wednesday. “You’re a court ruling away from being back to the same thing.”

“You’re a court ruling away from being back to the same thing.”

- Sen. Marco Rubio (R-Fla.)

The federal government has taken more than 2,000 children from their parents since Attorney General Jeff Sessions announced the zero tolerance policy in May, prompting widespread outrage.

Several proposals have been introduced in the Senate to address the crisis, but none so far has attracted bipartisan support. On Wednesday, Sen. Thom Tillis (R-N.C.) introduced a narrowly tailored bill that would essentially codify Trump’s executive order and allow children to be detained with their parents. It has 27 GOP co-sponsors, including Senate Majority Leader Mitch McConnell (R-Ky.), who ultimately decides which bill gets a vote on the floor.

Democrats, meanwhile, have continued to insist that no legislation is necessary to address the crisis because the Trump administration could reverse its zero tolerance policy immediately. They also say they oppose locking up families together, calling it a “monstrous” policy.

“Locking up whole families is no solution at all—the Trump Administration must reverse its policy of prosecuting vulnerable people fleeing three of the most dangerous countries on earth, who are attempting to seek safe haven in America,” Sen. Dick Durbin (D-Ill.), the No. 2 Democrat in the Senate, said in a statement on Wednesday.

It’s unclear, however, whether Democrats as a whole will ultimately object to a narrowly tailored bill that allows immigrant families to be detained together if Republicans are able to bring one up for a vote. If they decide to oppose it, they could be blamed for standing in the way of a solution.

“The idea that we don’t want to fix this is just not plausible,” Sen. Brian Schatz (D-Hawaii) said Wednesday, dismissing the notion that his party would receive blame. “It only is plausible for a few operatives on the Republican side whispering in the ears of journalists. ... Nobody in the world thinks that maybe [Senate Minority Leader] Chuck Schumer (D-N.Y.) doesn’t want to fix this.”

In the House, Republicans are planning to vote Thursday on legislation that includes a provision allowing the Department of Homeland Security to detain whole families for longer periods than it can currently.

Rep. Glenn Thompson (R-Pa.) said he hoped family detentions wouldn’t be indefinite, likening them to “a practice of Third World countries.”

“I would hope what that means is we’re going to be, in an expedited fashion, processing folks to be able to help them return home,” he said.