Republicans Misplace Blame for Splitting Families at the Border

The White House and prominent Republicans in Congress cited a 1997 court settlement to justify separating migrant children from parents who illegally enter the United States. But the settlement did not require the government to break up families, and the practice has spurred protests against the Trump administration, a rebuke from the United Nations and a court challenge.

WHAT WAS SAID

“The separation of illegal alien families is the product of the same legal loopholes that Democrats refuse to close. And these laws are the same that have been on the books for over a decade. The president is simply enforcing them.”

— Sarah Huckabee Sanders, White House press secretary, to reporters Thursday.

“What’s happening at the border in the separation of parents and their children is because of a court ruling.”

— Speaker Paul Ryan, at a news conference Thursday.

I want 2 stop the separation of families at the border by repealing the Flores 1997 court decision requiring separation of families + give DOJ the tools it needs 2 quickly resolve cases.

— Sen. Chuck Grassley, R-Iowa, in a Twitter post Thursday.

THE FACTS

This is misleading.

Hundreds of migrant children have been separated from their parents at the border since October, but there is no decades-old law or court decision that requires this.

Sanders, Ryan and Grassley are referring to a class-action lawsuit that was initially brought against the Reagan administration, as Flores v. Meese, and settled under the Clinton administration in 1997, as Flores v. Reno.

The Flores settlement required immigration officials to “place each detained minor in the least restrictive setting appropriate” — for example, providing food, water and toilets. The government also agreed to release immigrant children “without unnecessary delay” under an established preference ranking for custody.

After a surge of families from Central America began arriving at the Southwest border in 2014, the Obama administration opened family detention centers. That prompted more lawsuits, which argued that doing so had breached the Flores settlement by not releasing children swiftly.

In 2016, the 9th U.S. Circuit Court of Appeals ruled that the Flores settlement “unambiguously applies both to minors who are accompanied and unaccompanied by their parents.” It also overturned a U.S. District Court’s decision that the government must also release the parents.

Attorney General Jeff Sessions announced a “zero tolerance” policy in April, stating that “our goal is to prosecute every case that is brought to us” — thus leading to the detention of migrant parents.

In other words, without the Trump administration’s new enforcement policy, the Flores settlement — and subsequent rulings clarifying its scope — alone would not have caused family separation at the border. As The New York Times reported last month:

Spurred on by the president, Attorney General Jeff Sessions last month announced a “zero tolerance” policy in which people who cross the border illegally are to be subject to criminal prosecution. On Tuesday, the administration officials argued that the two directives, taken together, essentially left them with no option other than to take children from their parents at the border.

Under Flores, the government has three options: releasing families together, passing a law that would allow for family detention or breaking up the families. The Trump administration has so far chosen the third option.

Source: Flores settlement text, 9th U.S. Circuit Court of Appeals, The New York Times, Congressional Research Service, office of Rep. Paul D. Ryan