THE Trump administration’s position on immigration is simply summarised: it would like to have fewer immigrants, whether legal or illegal. But that aim, shared by both President Donald Trump and Jeff Sessions, the attorney-general, has collided with pesky obstacles like laws, courts and public outrage. It has also provoked chaos on the southern border. A new “zero-tolerance” policy, announced in May, referred adults caught illegally crossing the border to criminal prosecution and required that accompanying children be separated and held in specialised facilities. That resulted in the spectacle of small, terrified children in cages, shocking the world. On June 20th the administration reversed its policy, instead opting to hold families together in detention. Now two legal losses for the administration make this compromise untenable.
The first, decided by a federal judge in San Diego on June 26th, criticised the administration’s “reactive governance responses to address a chaotic circumstance of the government’s own making,” which violated migrants’ due-process rights. The judge lambasted the federal government’s failure to track separated children and its failure to plan for their eventual reunification with their families. Authorities tended to give more care and attention to seized cars and property than to the children of illegal immigrants, he wrote. The judge forbade the Trump administration from separating more such families and ordered that it reunify separated children and parents within one month. He gave the government 14 days to reunite 102 children aged under five with their parents. But the deadline of July 10th came and went with only one-third of those small children back with their parents, thanks to chaotic organisation and a lack of tracking. Some children had been without their parents for so long that they no longer recognised them.
The second decision, issued by a federal judge in Los Angeles on July 9th, severely hampers the administration’s back-up plan of keeping families together while pursuing criminal prosecutions against parents. A binding court settlement, known as the Flores decision, limits the time that a child can spend in such detention to 20 days. Donald Trump ordered the Department of Justice to try and convince the court to change the terms, so that children could be held indefinitely while their parents’ cases proceeded. For asylum cases, this could mean several months in custody. The judge, Dolly Gee, didn’t much like this request. She described it as a “cynical attempt” 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”. She denied it.
All this shows the folly of the Trump administration’s attempts to upend immigration policy. Mr Sessions may continue to use his prosecutorial discretion to file criminal charges against illegal immigrants. But he can no longer separate families or hold them in detention together for longer than 20 days. Executive fiat has been slapped down by the courts.
With no better options available, the Trump administration will be forced to give families a court date and release them into the country wearing ankle bracelets for monitoring. It has already done this for several hundred families. For immigration hardliners, this marks a return to the much-hated policy of “catch-and-release”. In the past five years, between 60% and 75% of illegal immigrants made their court date. Those who don’t are issued a deportation order in absentia. Mr Trump sees this as a loophole. He had pledged, during his campaign, to eliminate it. “Judges run the system and illegals and traffickers know how it works,” he tweeted on July 11th. “They are just using children!”