President Donald Trump signed an executive order Wednesday afternoon to ensure that families who are caught crossing the border illegally will be detained together “where appropriate and consistent with law and available resources.”
The announcement is a reversal of the principled stance the Trump administration had previously taken that it was bound by law and by court precedents, and only Congress could solve the problem by changing the law.
The legal framework has not changed. The Flores consent decree from 1997 prevents detaining families together. So when illegal aliens are arrested with children, the children must be held — i.e. placed in shelters — separately from the adults (who are not always their parents).
The executive order directs federal agencies to ignore that decree — while directing the Attorney General to ask a federal court in California to modify Flores accordingly.
There is no guarantee that the court will do so. Meanwhile, the president has directed federal agencies to act in defiance of the law.* (See update below). And despite his rhetoric about needing new laws, the president has let Congress off the hook.
There was a better solution. Trump should have demanded that Speaker Paul Ryan move a limited bill through the House which simply addressed the loopholes in existing law, including the Flores decree.
Then the House should have sent the bill to the Senate, and challenged Minority Leader Chuck Schumer (D-NY) to follow through on his Tuesday vow that he would not solve the problem through legislation. He would have caved.
The president would have signed the law, and the separation of children from their parents would have stopped — within a proper legal framework, and with a political precedent that placed the burden on Congress to solve the problem of illegal immigration.
Trump would have laid the foundation for an appropriate long-term solution while showing everyone — including foreign adversaries — that he sticks to his commitments.
Alas, it was not to be.
As soon as news of the impending executive order broke on Wednesday, CNN explained the Flores decree — which it had largely ignored, as media spread the lie that there was “no law” separating illegal aliens parents and children.
Left-wing activists already plan to challenge the order. If they win, it will be back to square one: catch-and-release.
Word will spread down the line, and with the U.S. economy booming, thousands more illegal aliens will pay smugglers and cartels to move them across the border — including children traveling alone, who are exposed to abuse of every kind. And no administration will ever risk enforcing the law again. The political cost is just too high.
That is not to say Trump gained nothing from the fight. He exposed the fact that Democrats do not want to see any law enforcement whatsoever along the border.
The “fix” proposed by Sen. Dianne Feinstein (D-CA), which was co-sponsored by every single Democrat in the Senate, would effectively have protected illegal aliens — and probably other criminals — from arrest by federal authorities in most of the country, as long as they had children with them.
Moreover, the media have been forced to confront the migrant crisis they ignored while President Obama was in office. When Breitbart News broke the story in 2014 that thousands of illegal alien children were showing up at the border and being “warehoused” in Border Patrol facilities, few journalists cared.
With Trump in office, what the Associated Press once called “holding cells” were magically transformed into “cages.” At least they care now.
However, Trump has affirmed the awful precedent set by President Barack Obama, who tried to use his “pen and phone,” i.e. executive orders and actions, to evade Congress rather than compromising with the opposition.
The erosion of constitutional checks and balances was the worst legacy of the Obama presidency, and Trump had done much to reverse it, until now. Future administrations, especially Democratic ones, will pick up where Obama ended.
For several days, Trump had stood firm against massive pressure from the media, the Democrats, the institutional left, and his own party.
On Wednesday, he showed that if you call him “Hitler” loudly enough, even he may cave.
The opposition will not be sated by their victory. On the contrary, they will be emboldened, and use the same tactics in every future fight.
For the media, this was never about the kids; it was always about Democrat votes.
This is a risky retreat.
* Update: My Breitbart News colleague, Ken Klukowski, argues that the executive order is lawful, because it includes the caveat, “where appropriate and consistent with law and available resources.” In other words, families could only be detained together when lawful. That means that while Flores is still in effect, families can be detained together legally for 20 days. So for at least 20 days, the federal government will be in compliance with the law.
The trick comes after day 20. At that point, if the Trump administration follows its stated policy goal of keeping families together, and the court has not modified the Flores agreement, it will be breaking the law. Trump could do as Obama did, and simply ignore the law until forced to comply by the courts. Or — more likely — the president will have to choose between detaining adults separately from children, and letting whole families go after all.
After this week of hysteria, it seems obvious which of those options the Trump administration will choose. Unless rescued by a California court — good luck with that! — Trump has signed an order that is a recipe for returning to “catch-and-release.” Congress could override Flores on its own with a new law, but with Democrats holding firm on a filibuster in the Senate, it will not. For all the rhetoric about “zero tolerance,” the executive order is a retreat.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named to Forward’s 50 “most influential” Jews in 2017. He is the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.