US president Donald Trump caved to enormous political pressure Wednesday and signed an executive order meant to end the separation of families at the border by detaining parents and children together for an indefinite period.
“We’re going to have strong, very strong borders, but we are going to keep the families together,” Mr Trump said as he signed the order in the Oval Office.
“I didn’t like the sight or the feeling of families being separated.” But ending the practice of separating families still faces legal and practical obstacles. A federal judge could refuse to give the Trump administration the authority it wants to hold families in custody for more than 20 days, which is the current limit because of a 1997 court order.
And the president’s order does nothing to address the plight of the more than 2,300 children who have already been separated from their parents under the president’s “zero tolerance” policy.
Federal officials initially said those children would not be immediately reunited with their families while the adults remain in federal custody during their immigration proceedings.
"There will not be a grandfathering of existing cases," said Kenneth Wolfe, a spokesman for the Administration for Children and Families, a division of the Department of Health and Human Services. Mr Wolfe said the decision about the children was made by the White House.
But later Wednesday evening, Brian Marriott, the senior director of communications for the agency, said that Mr Wolfe had “misspoke” and insisted that “it is still very early and we are awaiting further guidance on the matter.” Mr Marriott said that “reunification is always the goal” and that the agency “is working toward that” for the children separated from their families because of Mr Trump’s policy.
His statement left open the possibility, though, that the children could be connected with other family members or “appropriate” sponsors living in the United States, not necessarily the parent they were separated from at the border. The president signed the executive order days after he said that the only way to end the division of families was through congressional action because “you can’t do it through an executive order.”
But he changed his mind after a barrage of criticism from Democrats, activists, members of his own party and even his wife and eldest daughter, who privately told him the policy was wrong.
Mr Trump had previously been told by advisers that there was no way for the policy to be changed through an executive order, and it was unclear what the genesis of the measure he signed was. But the White House counsel, Donald McGahn, had concerns about moving ahead with an executive order that would face an uphill battle in the courts.
The president's chief of staff, John Kelly, did not voice major objections, according to a White House official. The move also helped alleviate pressure on Kirstjen Nielsen, Mr Kelly's protégé and handpicked successor at the Department of Homeland Security.
Cagelike detention facilities
Stories of children being taken from their parents, audio of wailing toddlers and images of teenagers in cagelike detention facilities had exploded into a full-blown political crisis for Mr Trump and congressional Republicans, who were desperate for a response to those who have called the practice “inhumane,” “cruel” and “evil.”
The president’s four-page order says that officials will continue to criminally prosecute everyone who crosses the border illegally, but will seek to find or build facilities that can hold families, parents and children together instead of separating them while their legal cases are considered by the courts.
But the action raised new questions that White House officials did not immediately answer. The order does not say where the families would be detained. And it does not say whether children will continue to be separated from their parents while the facilities to hold them are located or built.
Officials on a White House conference call said they could not answer those questions. 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 US District Court in Los Angeles, the daughter of immigrants from China who was appointed by former US 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.
Flores settlement
The 1997 case imposes legal constraints on the proper treatment of children in government custody, which stopped 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 counsellor to Attorney General Jeff Sessions. "Are we going to be able to detain alien families together or are we not?" Mr Hamilton said that the judge's previous rulings prohibiting extended detentions of families had "put this executive branch into an untenable position."
He said that the president’s order is a stopgap measure that could be fixed permanently if Congress passes legislation to overhaul the immigration system. While the House is scheduled to vote Thursday on two competing immigration bills, the president’s decision appeared to lessen the urgency for lawmakers to address the issue.
“I don’t think anyone wants to see little children detained for long periods of time,” said Lee Gelernt of the American Civil Liberties Union, which challenged the Trump administration’s separation of families. “If they start detaining families and kids in tents or other places I think you will see immediate lawsuits.”