Take two: New DHS rule to restart zero-tolerance border enforcement?


Fourteen months after a court order ended the Trump administration’s zero-tolerance policy on illegal immigration, Homeland Security will take steps to undo the basis of that action. Later today, DHS will roll out a new rule that will greatly modify the Flores settlement that bars detention of families for more than three weeks, a limit that makes it all but impossible to prosecute adults. That will set off a new effort to arrest and detain any and all people crossing illegally into the US, almost certainly followed shortly afterward by another court fight:

Eliminating the Flores settlement would allow the U.S. government to hold migrant children and their families indefinitely while they await court proceedings. The 1997 Flores v. Reno decision by the Supreme Court laid out specific conditions under which unaccompanied migrant children could be held in detention, and was later expanded to place time restrictions on the detention of migrant children accompanied by family members.

The new rule is expected to be rolled out during a Department of Homeland Security (DHS) press conference on Wednesday morning.

“The Administration is closing one of the legal loopholes that has allowed human traffickers and smugglers to exploit our vulnerabilities at the southern border,” a senior administration official told the Daily Caller. “President Trump has made it clear that he’s going to secure America’s border at all cost and this rule plays a vital role in the strategy to restore the integrity to our immigration system and our national security.”

The administration also plans to establish national standards for family detention housing.

Technically, the new rule can’t end the Flores settlement, but it can reinterpret it into submission — or at least try to do so. The Trump administration sees the Flores settlement as presently implement as a “loophole” that incentivizes adults to bring children along when they attempt illegal entry. Nor are they alone in that interpretation. The Obama administration chafed under its limitations too when faced with a surge of children at the borders in 2014 and tried to modify the settlement, the New York Times recalls:

The Obama administration, which battled a new surge in migrant families arriving on the border in 2014, tried and failed to get out from under the strict limits. The Trump administration railed against the “legal loopholes” in the consent decree and tried mightily to upend it. The Flores agreement, the administration argued, helped create the current chaos at the border by providing an incentive for migrant parents to bring their children with them — the equivalent, under the current legal framework, of a get-out-of-jail-free card. …

When the Trump administration last year tried to get around the Flores agreement by separating children from their parents in order to detain the parents alone, the policy created such an uproar that it was soon rescinded, at least officially. Then, administration lawyers went to court to try to win permission to keep children with their parents in detention-type facilities for longer than 20 days.

Judge Dolly Gee of Federal District Court in Los Angeles, who oversees the agreement, denied the government’s request, blaming more than 20 years of congressional inaction and “ill-considered executive action” for the “current stalemate.” Three months later, in September, the administration published the proposed new Flores regulations for comment in the Federal Register.

After the final rule is published, the plaintiffs’ lawyers will have one week to file a brief with the court if they believe the final regulations fail to implement the terms of the settlement.

That’s essentially what happened last year, too. The Trump administration tried to reinterpret the Flores settlement, and federal judge Dolly Gee overruled DHS. When the DHS attorneys argued that the settlement needed to be amended to deal with its perverse incentives that have encouraged more trafficking of children, Gee rejected it in part because the change at that time would “hold minors in indefinite detention in unlicensed facilities.” That’s why DHS has included a new standard for detention facilities as part of its second attempt to modify the interpretation of the Flores settlement.

DHS will have to deal with Gee again on this rule, as she has jurisdiction over the enforcement of the Flores settlement. The prospects for success look somewhere between slim and none. It was Gee who enhanced the incentive in her 2015 ruling by applying the 20-day rule not just to the children but also to the adults who accompanied them across the border, which helped to create the dysfunctional status quo. Last year, Gee dropped broad hints that she would not acquiesce to the rule-making process but instead wanted the White House and Congress to work together to resolve the issue in statute. It’s possible that creating an enforceable standard of detention for children that addresses the core concerns of the original Flores settlement might satisfy Gee, but it seems very unlikely.

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And Gee is correct in one sense, too. This issue should get resolved legislatively rather than judicially. Congress has to work with the White House to protect the border and protect children from being pawns in human trafficking. This failure belongs mainly to the political class. If this new rule’s short lifespan refocuses that responsibility on both sides of Pennsylvania Avenue, that will be its only real value.

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