His directive was expected to keep families together but in indefinite detention. That likely would open a new legal battle, over a landmark 21-year-old court settlement known as the Flores agreement under which the federal government agreed to hold minors no longer than 20 days.
Earlier in the day at the White House, speaking at the center of a table surrounded by Republican senators and House members, Trump said, “We’re going to keep families together but we still have to maintain toughness or our country will be overrun by people, by crime, by all of the things that we don’t stand for and that we don’t want.”
“If you’re weak, you’re pathetically weak, you’re country’s going to be overrun with people,” Trump said. Scoffing that some equate being strong with having no heart, he added, “I’d rather be strong.”
Trump’s reversal on the 6-week-old family separation policy was remarkable given his aversion to ever admit error or back down. That reflected the White House’s desperation to quash one of its worst crises to date — over a policy that drew condemnation from Republicans as well as Democrats, all four former first ladies, and conservative and liberal religious leaders.
Yet Trump risked angering the most anti-immigrant elements of his base, after days of insisting that family separation was an essential part of a tough immigration agenda to end what he calls his predecessors’ lax border enforcement, and prevent children from being used as “keep out of jail free” cards by child smugglers and other criminals.
The crisis had consumed his administration for days as Republicans and Democrats reacted to searing pictures and audio of young migrant children crying at being separated from their parents after crossing the border from Mexico, many to seek asylum from violence in their home countries.
The administration said more than 2,300 children were taken from their parents, who are detained for criminal prosecution, and held in separate detention facilities in 17 states. The separations climbed rapidly after the administration began its “zero tolerance” policy in May, requiring more criminal prosecutions rather than civil deportation actions.
In the George W. Bush and Obama administrations, people crossing the border illegally or seeking asylum were released pending civil hearings in immigration courts. Trump has claimed as recently as Tuesday that 80 percent of those released never showed up for their court dates and disappear into the country, but federal data suggest that most do show up, though a significant number are unaccounted for.
As the administration and Republican lawmakers sought to resolve the crisis, the signs of confusion were evident.
Kirstjen Nielsen, the Department of Homeland Security secretary, spent the morning at the White House, urging Trump to pursue congressional action to end the separation of families at the border, according to an administration official. Attorney General Jeff Sessions, the longtime anti-immigration advocate who announced the family separation policy in May, was at the Capitol to meet with exasperated Republican lawmakers.
Officials said the administration is not ending its “zero tolerance” policy, which criminally prosecutes more people who cross the border illegally. Instead, the administration is looking at how it can override or overturn a 1997 legal settlement known as Flores that restricts the amount of time that families can be held in immigration lock-ups together, the official said.
The administration has argued that the settlement forced it to lock up children separately from their parents. Past administrations mostly avoided that by releasing the parents with their children pending civil hearings, and by not pursuing criminal prosecutions as well as civil deportation actions.
The Trump administration is considering a lawsuit to challenge that settlement. Also, the president’s order, assuming it holds children in detention for longer periods than currently permitted, is likely to invite a legal challenge. That is why some in the administration advocate a legislative solution, and why Trump said he expects his order to be followed by action in Congress.
Some lawmakers who’d been hopeful that the pressure created by the outcry would force agreement on a long-sought, comprehensive immigration compromise expressed frustration that the president is opting to act on his own.
“It takes care of a political problem, but it doesn’t take care of a policy problem,” Sen. Chuck Grassley, R-Iowa, told reporters. “It takes the heat off,” he added, “and that’s too bad.”
Yet other Republicans were not optimistic that any of the party’s competing immigration proposals could pass and become law, given divisions between conservative and moderate Republicans and opposition from Democrats.
Senate Democratic Leader Charles E. Schumer has sought to put pressure on Trump to end the separations himself. “He seems content to let Trump own this,” said one senior Democratic Senate aide.
The president’s action, after days of defiance, scrambled House Republicans’ plans to take up broader immigration legislation on Thursday, including a provision to end family separation. That legislation wasn’t expected to become law, given Senate opposition, which is why many Republicans wanted Trump to act now to end family separations.
House Republicans had said earlier Wednesday that they were forging ahead with their plans for Thursday votes. After word broke of Trump’s likely retreat from the family separation policy, a group of House Republican leaders, including Speaker Paul D. Ryan, hustled to the White House to figure out next moves.
The House legislation would also provide billions of dollars for Trump’s dream of building a border wall, make steep cuts to legal immigration programs, and provide legal status to so-called Dreamers who came to the country illegally as children years ago.
The president said he still supports passage of a broad immigration bill, and House Republican leaders were pushing recalcitrant members hard to support it. Prospects remained dim, however, as most Democrats are expected to oppose the legislation along with Republican conservatives unwilling to support granting citizenship to Dreamers.
Senate leaders from both parties have also expressed little support for the House’s sweeping approach, preferring a more narrow bill that would simply ensure the separation policy would end in the event Trump failed to act.
Though lawmakers appeared blindsided by Trump’s reversal, many were relieved that he backed down. The separation policy, which he has falsely blamed on Democrats and the requirements of current law, triggered the most intense backlash from lawmakers and the public since his first attempt in 2017 to impose a travel ban against several Muslim countries, which triggered chaos at airports nationwide.
Republicans in tough races were facing questions about family separation just months before the midterm elections. Rep. Chris Collins, R-N.Y., said he typically doesn’t like executive orders, but that he supports anything “to put this behind us.”
Democrats said Trump’s sudden reversal showed the crisis was one of his own making. “The president created this problem, the president is free to fix it,” said Rep. Pete Aguilar, D-Calif.
The executive action may actually make passage of the broader bill more difficult, however, because it removes the sense of urgency for Congress to act.
Yet Rep. Jeff Denham, R-Calif., argued that a fix for the so-called Dreamers should remain a priority that drives broader legislation: “My job is to make sure that we continue the public pressure and that we continue to force a timeline on this regardless.”
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