Dissecting the executive order
WASHINGTON – In less than 800 words, President Donald Trump’s executive order on immigrant children seeks a balance between his “zero tolerance” policy for illegal border crossings and ending the practice of separating immigrant children from their parents. ❚ But a careful reading shows that Trump hasn’t eliminated the problem with a stroke of a pen and that it still could face legal, budgetary and practical hurdles.
❚ Here’s a guide to the order:
Setting the tone
EXECUTIVE ORDER: AFFORDING CONGRESS AN OPPORTUNITY TO ADDRESS FAMILY SEPARATION
In the title, Trump is making a point: Congress is ultimately responsible for fixing the problem, not him.
In an indication of how hastily drafted the order was, the original version on the White House website incorrectly spelled the word “seperation.” Regardless, the title sends the message that Trump sees his order as a short-term solution, and expects Congress to pass an immigration bill.
Claim of authority
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:
Trump is stating that he’s not encroaching on congressional authority because Congress already gave the president broad immigration powers under the Immigration and Nationality Act of 1965.
The ‘why’ of the executive order
It is the policy of this Administration to rigorously enforce our immigration laws. … It is also the policy of this Administration to maintain family unity
… It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.
Here, Trump is: (1) defending the “zero tolerance” policy that led to the separation of immigrant children from their families; (2) expressing a policy of maintaining family unity; and (3) continuing to blame Congress for the border crisis.
What the order does
The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.
The order also directs the Secretary of Defense to “take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.”
It also instructs the attorney general to “promptly file a request with the U.S. District Court for the Central District of California to modify” the Flores Settle- ment, a longstanding consent decree that puts a 20-day limit on the time children can be held in detention.
If children are detained with their parents, the 20-day limit may apply before the parents’ case is resolved. That means the administration must either violate the court order, split up the families again or release the children and parents together after 20 days.
And here’s the fine print
The language says the order “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
This makes clear that immigrant families cannot sue an agency for failing to follow the executive order.
“It is the policy of this Administration to rigorously enforce our immigration laws. … It is also the policy of this Administration to maintain family unity.”