(Bloomberg) -- President Donald Trump may have a hard time reversing his policy of separating undocumented children from their parents at the U.S. border because his alternative may get shot down in court.
Implementing the June 20 directive hinges in part on whether U.S. District Judge Dolly Gee in Los Angeles agrees to amend a 21-year-old agreement -- known as the Flores settlement -- on the government’s handling of undocumented minors. The deal prohibits authorities from detaining immigrant children for more than 20 days, even with their parents.
"Assuming Judge Gee bars the Trump administration from modifying the Flores settlement, the administration can either cave, and blame the judge for illegal immigration, or defy the court, which will lead to more litigation," said Stephen Yale-Loehr, who teaches immigration law at Cornell University and doesn’t think Gee will modify it.
Gee had earlier declined to waive the settlement for the Obama administration when it faced an influx of unaccompanied minors from Central America.
Trump and his supporters hailed the executive order as a fix to a policy that sparked public outrage and widespread condemnation, though the fine print acknowledges its potential weakness in court.
Section 3(e) of the directive orders U.S. Attorney General Jeff Sessions to ask the Los Angeles court to modify Flores to allow the government "to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings." It’s unclear what Trump will do if the judge balks at his request. One option is for the government to just go back to taking the kids away from their parents indefinitely.
The settlement, in a suit now called Flores v. Sessions, resolved a 1985 case over the government’s policy for the detention, treatment and release of immigrant children. The accord encourages family unity, but allows the government to continue detaining children beyond 20 days if acceptable housing hasn’t been procured. A 2008 federal law to prevent human trafficking places additional limits on the government’s ability to detain unaccompanied minors.
Hans von Spakovsky, a lawyer at the conservative Heritage Foundation, said the Flores settlement is flawed and faulted the Clinton administration for signing off on it. He said the Obama administration added to the problem by failing to prosecute parents who came over with children.
"Everybody keeps blaming Trump for this, but Trump isn’t to blame for family separations," von Spakovsky said. People have been crossing illegally and "using children as a get-out-of-jail-free card."
The real issue behind the family separation crisis is Trump’s use of a "zero tolerance" policy instead of using discretion, said Lori Nessel, a professor at Seton Hall University School of Law in Newark, New Jersey. Under the policy anyone suspected of illegally crossing the U.S.-Mexico border is prosecuted criminally, rather than allowing some individuals and families to be released on the promise they’ll appear in court later.
"Discretion as to who to prosecute, target for deportation, and detain, has been an essential component of immigration regulation throughout prior administrations," Nessel said. "The Trump Administration’s move away from discretion and prioritization for enforcement and detention, and toward mass criminalization of all immigrants, including those seeking asylum, is costing taxpayers billions of dollars and threatening our core values as a nation."
Immigrants-rights groups say Trump’s new policy violates the Flores agreement.
"We should not have to choose between separating parents from their children and expanding the shameful practice of imprisoning families," Beth Werlin, executive director of the American Immigration Council, said in a statement.
Mark Hetfield, president of HIAS, a refugee-rights group, said the problem with the policy boils down to the simple truth that children don’t belong in jails.
“Transitioning from the cruel and inhumane policy of family separation to the cruel and inhumane policy of indefinite family detention cannot be the solution here," Hetfield said in a statement.
The American Bar Association also weighed in, saying it backed the policy of ending separations while contending there are more humane ways than family detention to ensure individuals appear in immigration court, including pre-hearing release and bond.
"It is not an either-or choice between separation and detention of families," the ABA said Wednesday in a statement.
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