White House reviewing plan to end court settlement on immigrant child detention
By Tal Kopan, CNN
The White House is reviewing a plan that could nullify a settlement that immigrant children that arrive with their families be released from custody within 20 days, a rule they have blamed for their separation of thousands of families at the border.
The action to finalize regulations on the topic, revealed in a government database, comes after repeated attempts to change the Flores Settlement Agreement have been resoundingly rejected by a federal judge and amid continuing fallout over the Trump administration’s related decision to separate families at the border.
The Trump administration has made the Flores settlement a frequent target of its ire — blaming the agreement for its decision to implement a policy at the border that resulted in thousands of families being separated. It has also repeatedly said only Congress can act to overrule the settlement. But lawmakers have shown little appetite to do so and have so far failed to pass any immigration legislation under this administration.
Key provisions of the agreement dictate minimum standards of care of immigrants in detention, as well as requiring that children who arrive with their families be released from custody within 20 days unless their parent agrees to them being held longer. But three weeks is faster than their immigration court cases can be processed, leading the Trump administration to complain the agreement forces them to either release the families together or separate them.
More: http://www.cnn.com/2018/08/02/politics/trump-administration-flores-settlement/index.html
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Sounds pretty scofflaw! Can they get with it?
Flores doesn’t purport to create Constitutional rights for the class members. Congress clearly could, and should, merely enact the Flores protections for children into statute. But, realistically, that’s not going to happen under Trump, and even if it did, Trump would undoubtedly veto it.
Conversely, perhaps Congress could overrule Flores by statute. But, if Flores turns out to be setting forth Constitutional minimum requirements, then the statute would be held unconstitutional. On the other hand, if no Constitutional issues are involved, Congress would be free to act. However, Congress hasn’t shown any enthusiasm for immigration legislation, particularly something as sensitive and potentially controversial as Flores.
Additionally, just because Congress could change the law doesn’t necessarily mean that the Administration could do so by regulation. Indeed, if the Administration could void a court-approved settlement simply by publishing a regulation, settlements with the Government would cease to have any meaning or enforceability.
Also, at the time of the original Flores settlement it seems to me that both parties and the court wisely wanted to avoid protracted litigation on the Constitutional question of long-term detention of children which had risks for both parties.
At a minimum, an attempt to “undo” Flores by regulation would allow the plaintiffs to raise the Constitutional issue in court. It’s seems to me that there must be some Constitutional limits on child detention. So, the Government could well end up enjoined to follow Flores while the litigation on the Constitutional question works its way up the system — a process likely to take until beyond 2020. I’d also say that the Administration’s stupidity and lawlessness on separating children from parents tends to make the “litigating context” very favorable for plaintiffs.
So, to me, it looks like another dumb, counterproductive, “in your face” move by the Trumpsters. But, that doesn’t mean they won’t try it. In fact, most of their so-called “litigating strategy” seems to fit this mold. It’s an Administration that has made immorality, lies, fraud, waste, and abuse of public resources the norm. However this issue comes out, that couldn’t bode well for the future of our country.
PWS
08-03-18