Trump Administration Decides to Wage Lawfare of Its Own in Immigration Case

Natalie Chan, and her daughter, Sabrina 10, holds signs with "Keep Families Together, " as they join a group of immigrant rights activists protesting against separating families caught at the border, outside the Los Angeles Federal building Saturday, Jun. 23, 2018. In recent weeks, more than 2,300 children were taken from their families under a "zero-tolerance" policy in which people entering the U.S. illegally face prosecution. While the family separations were ended, confusion has ensued, with parents left searching for their children. (AP Photo/Damian Dovarganes)

Natalie Chan, and her daughter, Sabrina 10, holds signs with “Keep Families Together, ” as they join a group of immigrant rights activists protesting against separating families caught at the border, outside the Los Angeles Federal building Saturday, Jun. 23, 2018. In recent weeks, more than 2,300 children were taken from their families under a “zero-tolerance” policy in which people entering the U.S. illegally face prosecution. While the family separations were ended, confusion has ensued, with parents left searching for their children. (AP Photo/Damian Dovarganes)

 

There are a lot of reasons for the current immigration mess but the underlying cause is a basic hostility on the part of the establishment, Republican and Democrat, to enforcing current immigration laws and a lack of sufficient guts to try to change them the correct way, via legislation, because of fear of the price voters will extract. This alliance is one made in heaven. The Chamber of Commerce arm of the GOP wants cheap illegal labor. The Democrats want illegals to convert into compliant voters.

The major crisis in immigration enforcement now is the question of what to do with the increasing number of accompanied children being apprehended at the border. The administration has two choices. Under terms of the so-called “Flores settlement,” the government can only hold accompanied children with their families in detention for twenty days. At the end of twenty days, they must either release the child into the custody of another family member not in detention or place them in a group home environment.

Oddly enough, this agreement is an outcome of the Democrat strategy of sue-and-settle wherein the government uses consent decrees to create policy outcomes that aren’t sustainable on their own merits. In this case, the federal government won a major victory in the Flores vs. Reno case, the Supreme Court upholding policy on how to manage accompanied children, but the Clinton Administration handcuffed itself by signing on to a consent decree much more restrictive and broader in scope than that required by the SCOTUS decision. Later, a federal judge unilaterally expanded the consent decree to cover unaccompanied minors as well, effectively arrogating power over the US immigration system to herself. And it is this same judge who had refused to budge on any of her policy preferences. Finally, belatedly, the Trump administration has decided it has had enough of this management of national immigration policy by a single federal judge.

The Trump administration said Thursday it is preparing to circumvent limits on the government’s ability to hold minors in immigration jails by withdrawing from the Flores Settlement Agreement, the federal consent decree that has shaped detention standards for underage migrants since 1997.

The maneuver is almost certain to land the administration back in court, where U.S. District Court Judge Dolly M. Gee, who oversees the agreement, has rejected attempts to extend the amount of time migrant children can be held with their parents beyond the current limit of 20 days.

But under changes proposed Thursday by the Department of Homeland Security and the Department of Health and Human Services, the administration said it would issue new regulations that “satisfy the basic purpose” of the Flores settlement and ensure migrant children “are treated with dignity, respect and special concern for their particular vulnerability as minors.”

The proposal comes weeks after the Trump administration failed to obtain permission to detain children for unspecified periods of time from Judge Gee in Los Angeles.

Justice Department lawyers had asked for permission to detain children and parents together until their cases are adjudicated, a process that can take months.

In July, Gee sharply rebuked the Justice Department’s request, calling it “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”

Advocates say the Trump administration has the authority to create regulations to replace the court agreement, but they worry that officials will ignore the substantive protections in its quest to deport immigrants.

We can predict, like clockwork, that this will result in more litigation and we can also predict that, in the end, the government will prevail and Flores will be swept away. One hopes this is just the beginning of a coordinated and concentrated attack on consent decrees across the board.