Over the weekend it was revealed that the Trump administration’s Department of Homeland Security was considering separating children from parents when family units of illegals were apprehended. The parents would go to standard detention centers while the children would go into foster care.

Women and children crossing together illegally into the United States could be separated by U.S. authorities under a proposal being considered by the Department of Homeland Security, according to three government officials.

Part of the reason for the proposal is to deter mothers from migrating to the United States with their children, said the officials, who have been briefed on the proposal.

The policy shift would allow the government to keep parents in custody while they contest deportation or wait for asylum hearings. Children would be put into protective custody with the Department of Health and Human Services, in the “least restrictive setting” until they can be taken into the care of a U.S. relative or state-sponsored guardian.

This has caused some people to criticize the administration

U.S. Representative Henry Cuellar, a Texas Democrat whose district includes about 200 miles (320 km) of the border with Mexico, slammed the proposal. “Bottom line: separating mothers and children is wrong,” he said in a statement.

“That type of thing is where we depart from border security and get into violating human rights,” he said.

Unfortunately, the Trump administration, like the Obama administration before it, has very limited options in dealing with the problem.

The policy would allow DHS to detain parents while complying with a 9th U.S. Circuit Court of Appeals order from July 2016 that immigrant children should be released from detention as quickly as possible. That order said their parents were not required to be freed.

To comply with that order, the Obama administration implemented a policy of holding women and children at family detention centers for no more than 21 days before releasing them.

Holding mothers in prolonged detention could also strain government resources, said Randy Capps of the Migration Policy Institute, a Washington-based non-profit.

“You are talking about a pretty rapid increase in the detention population if you are going to do this,” Capps said. “The question is really how much detention can they afford.”

Department of Homeland Security Secretary John Kelly last week ordered immigration agents to deport or criminally prosecute parents who facilitate the illegal smuggling of their children.

How did the 9th Circuit come up with this idea that you can’t hold children in detention with their parents? I mean other than the real reason, an overt attack on US immigration law under the cover of a black robe. Who knows? But it doesn’t matter. We’re no longer a nation of laws, we are a nation of random judges making sh** up.

What this means is that when a family unit caught after it has crossed the border, so they can’t merely be turned back, insists on a deportation hearing (this is the process) the government, if it decides to keep parents and children together, has two options: let them go with a citation directing them to show up for their hearing (right) or give them a hearing within 21 days (not going to happen). By making this decision, the 9th Circuit created a perverse incentive for people to bring children along with them, and exposing the children to all manner of dangers, as an insurance policy.

This is not unknown among people trying to cross the border illegally.

The proposed change in policy ups the ante for the parents attempting to enter the US illegally. If they are caught they can either agree to deportation as a family unit or they lose temporary custody of their children after 21 days and get the children back when their case is resolved.

While is sounds, and in fact may be, harsh, you really only have two choices: let family units go free and never deport them, or use the foster care option.