Donald Trump is eager to blame someone else for his administration’s brutal policy of separating immigrant children from their parents at the border. The president has repeatedly blamed Democrats for the practice, declaring that “their law” requires a family separation policy and even tweeting that Democrats themselves are “forcing the breakup of families at the Border.” Press Secretary Sarah Huckabee Sanders has affirmed Trump’s position, insisting that family separation is “the law, and that’s what the law states.” House Speaker Paul Ryan agreed, claiming that the administration was merely following a court ruling.
These allegations, of course, are absolutely false. There is simply no law or court order that requires the U.S. government to snatch children, including babies and toddlers, from their parents. Indeed, Trump’s own Department of Justice—headed by Attorney General Jeff Sessions, who vigorously defends family separation—has acknowledged in court that Trump and Sessions created the policy. These documents plainly reveal what Trump wishes to deny: He is the reason for the forced breakup of these families, and he can halt it anytime he pleases.
Sessions’ DOJ acknowledged this fact while defending the government against a lawsuit filed by the American Civil Liberties Union. The ACLU argued that the Trump administration’s new policy violated immigrant families’ constitutional rights. In response, the DOJ argued that the federal court had no authority to review the policy’s legality, because federal law prohibits courts from reviewing the government’s determination “on where to detain aliens” in ICE custody. This decision, the law explains, falls within the “discretion” of “the Attorney General” and “the Executive.” And their “discretionary” conclusions, the DOJ asserted, are “not judicially reviewable.”
As attorney Max Kennerly has noted, this argument directly contradicts Trump’s denial of responsibility. At the heart of the administration’s family separation policy is its “zero tolerance” rule, which compels the criminal prosecution and imprisonment of adult immigrants who enter the country without authorization. Previously, relatively few immigrants were prosecuted for unauthorized entry (which is only a misdemeanor); most families intercepted at the border were placed in immigrant detention centers, then released on bond. Under the new rule, when families arrive at the border, parents are locked in federal prison. Their children obviously cannot accompany them, so they are packed into “shelters” like converted Walmarts—and, soon, tent cities.
Trump officials, along with Paul Ryan, have alleged that the 1997 Flores settlement agreement compels family separation. That, too, is patently false. The Flores settlement requires the government to release immigrant children from detention without unnecessary delay; to keep them in the “least restrictive” setting possible if it continues to detain them; and to take good care of those children who remain in custody. Absolutely nothing in Flores advises, let alone requires, the forcible division of parents and children at the border.
Rather, as the DOJ has noted in federal court, immigration agents are separating families solely at the direction of Sessions, who is implementing Trump’s policy preferences. If Trump directed Sessions to scrap the “zero tolerance” rule, family separation could stop, and children could be reunited with their parents. The president, however, refuses to do so. Instead, he is holding some 2,000 immigrant children hostage in an effort to goad Congress into passing a bill that strictly limits legal immigration and funds a physical border wall. Until Trump abandons “zero tolerance,” these children, and many more to come, will stay trapped in tents and warehouses, with no parents to comfort them and no end to their trauma in sight.
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