WaPo: CBP suspending zero-tolerance enforcement, temporarily ... at least; Update: Game back on?

Just last night, Donald Trump insisted that he could keep up his zero-tolerance enforcement of border laws while keeping children from being separated by Customs and Border Patrol. “They’re not sending their finest,” Trump told attendees at his Duluth, Minnesota rally. “We’re sending them the hell back. That’s what we’re doing.”


Not anymore, at least at the moment:

The dramatic about-face comes just one day after President Trump signed an executive order ending his administration’s widely denounced practice of separating families apprehended at the Mexico border.

Trump’s order said the government would maintain a “zero tolerance” policy toward those who break the law, but a senior U.S. official, when asked to explain how the federal government would change enforcement practices, told The Washington Post that Border Patrol agents have been instructed to stop sending parents with children to federal courthouses for prosecution.

“We’re suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody,” the official said.

Or did they?


It might be both. The Washington Post’s original headline on this said that the administration would “stop” its zero-tolerance policies, but the excerpt above more accurately calls it a suspension. The information given to Politico’s Schor might mean that they fully intend to stick with zero-tolerance enforcement for the long run, and that the suspension will not last long. Maaaaybe, anyway:


Again, it may be that they’re not changing the policy, but have to get changes in the law to pursue it. For that, though, Congress has to muster the will to act. Marco Rubio warned yesterday that the executive order Trump signed yesterday would be insufficient in maintaining family integrity while prosecuting those who cross the border, and not just in terms of resources:

As noted yesterday, the problem with the EO is that it directly contravenes statute and court precedent, especially Flores. That will require the judge in charge of that settlement to agree to relax its provisions, and that seems … mighty unlikely:

Justice Department officials said the legal authority to end family separation relies on a request they will make in the coming days to Judge Dolly M. Gee of the Federal District Court in Los Angeles, the daughter of immigrants from China who was appointed by President Barack Obama. She oversees a 1997 consent decree, known as the Flores settlement, which prohibits immigration authorities from keeping children in detention, even if they are with their parents, for more than 20 days.

The 1997 case imposes legal constraints on the proper treatment of children in government custody, which stopped Mr. Obama after his administration began detaining families together during a similar flood of illegal immigration several years ago.

“It’s on Judge Gee,” said Gene Hamilton, the counselor to Attorney General Jeff Sessions. “Are we going to be able to detain alien families together or are we not?”


However, there is also statutory hurdles to overcome, too. The 2008 Trafficking Victims Protection Reauthorization Act requires CBP and DHS to shelter children in the least restrictive environment possible, an extension of Flores intended to protect them from adult predators in detention centers. An EO cannot override statute.

Without action from Congress, the EO essentially prevents CBP and the Department of Justice from detaining families, returning to the status quo ante of “catch and release.” Resources have something to do with that too, another reason why Congress has to act to continue the policy:

Because ICE lacks the detention capacity to increase the number of families it holds in detention, the official acknowledged that many migrant parents and children will likely be released from custody while they await court hearings.

Top CBP officials did not know what the executive order would ask them to do until its release Wednesday, the official said. The decision to cease prosecutions of parents with children was made by the Department of Homeland Security for logistical purposes because the official said it would not be “feasible” to bring children to federal courtrooms while their parents go before a judge.

For a brief period yesterday, it appeared that the White House believed it could eat its cake and have it too. Reality has dawned on them today, however. If they had just prepared for this policy properly, much of this could have been avoided, and they’d have been in better position to get the changes to statutes needed:


The real question is why the Trump administration didn’t press Congress for these changes before adopting the zero-tolerance policy. The outcomes were not just predictable, they were inevitable. It seems almost unbelievable that no one in the White House predicted what that would mean in political terms, especially in a media environment that has been so hostile to this administration. The reaction from the media and from Democratic opponents has been hyperbolic and ignorant of the complicated history of border enforcement, but it has also been effective in turning the electorate against Trump in the short run. It’s a gift to Democrats running for the House and Senate, whose fortunes had flagged since the first of the year.

In other words, all of this blowback could have been avoided with more careful preparation of the political battleground. That’s a tough lesson to receive just a few months ahead of a critical midterm election that might determine whether any of the president’s nominees get confirmed over the next two years. It’s not the first time that this lesson has been taught, either, and one has to wonder whether anyone will learn from it this time.

Now Democrats have lots of incentive to obstruct any statutory solutions and stand off zero-tolerance enforcement for years, if necessary.

Update: The headline on this was changed shortly after the post went live.


Update: Did the pause get paused?

We’ll see how long this lasts after the first legal challenge, but at least for the moment in looks like game back on.

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Jazz Shaw 10:01 AM on December 02, 2023