Or put another way: Children are now a judicially recognized get-out-jail-free card to people crossing the border illegally. Late yesterday, a judge ordered the Department of Homeland Security to stop separating children from parents when detaining them for illegal entry. Without any statutory provenance to keep them together in detention, that leaves the Trump administration only one option:

A federal judge in San Diego ordered immigration agents on Tuesday to stop separating migrant parents and children who have crossed the border from Mexico and to work to reunite families that have already been split up while in custody.

U.S. District Court Judge Dana Sabraw issued a preliminary injunction in a lawsuit filed by an anonymous woman from the Democratic Republic of Congo and backed by the American Civil Liberties Union, which pursued it as a class action as U.S. authorities began a “zero tolerance” policy in early May. …

The injunction orders immigration agents to:

  • Stop separating parents and children without an objective finding that a parent is unfit.
  • Reunify families with children under age 5 within 14 days.
  • Reunify families with children 5 years old and older within 30 days.
  • Let parents speak with their children by telephone within 10 days.

Functionally, it’s the same as the executive order that Donald Trump signed last week, except for the demand to reunite families that have already been separated. That last part will undo many of the arrests and criminal referrals from the first several weeks of Trump’s zero tolerance enforcement program. As Gabriel Malor points out, the only option left now is a return to catch-and-release:

Worse yet, it amplifies the incentive to traffic children across the border. To be fair, the EO did this too, but it wasn’t clear how much Trump was willing to stand by that outcome. The order created a conflict with existing statute and the Flores settlement that looked unresolvable, but was also reversible if Trump didn’t mind continuing to take a political beating.

That line of retreat has been cut off now, thanks to this order. Not only is catch-and-release the only option going forward, the order will require it to be applied retroactively. There are currently insufficient resources to house reunited families, and even if we had them, the constraints of the 2008 Trafficking Victims Protection Reauthorization Act (the statutory response to Flores) make it nearly impossible to accomplish. Reuniting the families means releasing the adults.

The only solution to this will be Congressional action to amend the TVPRA to allow for family detentions through the entire cycle of case processing. So far, Democrats in Congress seem unwilling to do anything that allows for anything other than catch-and-release, so expect to see lots more children crossing the border as legal shields for the adults. That’s the way perverse incentives work.