WASHINGTON — President Donald Trump won’t take responsibility for the consequences of an immigration policy that is separating children from parents who are arrested for illegally crossing the U.S.-Mexico border. He persists in blaming a “Democrat” law for driving families apart, though no such law exists.
In remarks to reporters and in an interview with Fox News, he held firm to a contention he’s made, falsely and for weeks, holding Democrats responsible for splitting up migrant families.
TRUMP on Friday:
“The Democrats forced that law upon our nation. I hate it. I hate to see separation of parents and children.”
“I hate the children being taken away. The Democrats have to change their law. That’s their law.”
“That’s the Democrats’ law. We can change it tonight. We can change it right now.”
“That’s a Democrat bill. That’s Democrats wanting to do that and they could solve it very easily by getting together.”
“That’s the law and that’s what the Democrats gave us and we’re willing to change it today if they want to get in and negotiate but they just don’t want to negotiate.”
Repeating the assertion does not make it true. The Trump administration’s “zero tolerance” policy is responsible for spurring family separations. No law mandates it.
“Zero tolerance” means that when a family is caught sneaking into the U.S., the parents now are routinely referred for criminal prosecution, even if they have few or no previous offenses. That typically means detention for the adults, pending their trial. Under U.S. protocol, if parents are jailed, their children are separated from them because the children aren’t charged with a crime.
Until the policy was announced in the spring, such families were usually referred for civil deportation proceedings, not requiring separation.
The zero tolerance policy was announced April 6, and the policy was put into action in May. From April 19 to May 31, 1,995 children were separated from 1,940 adults, according to Homeland Security statistics obtained by The Associated Press. The figures are for people who tried to enter the U.S. between official border crossings.
Trump’s repeated, but nonspecific references to a Democratic law appear to involve one enacted in 2008. It passed unanimously in Congress and was signed by Republican President George W. Bush. It was focused on freeing and otherwise helping children who come to the border without a parent or guardian. It does not call for family separation.
Why not just fix the problem with new legislation? Trump stated, inaccurately, that “the Democrats have control.” Republicans control both houses of Congress. He meant that his party does not have a large enough majority to prevail without Democratic support.
Democrats, like many Republicans, abhor the family separations. They’ve objected fiercely to the zero tolerance policy that his administration instituted.
Trump’s supporters in Congress have blamed the separations on court decisions, but that’s also an evasion.
Courts have established the right of migrant children to be released from custody. They do not establish that right for parents, so the discrepancy can be used to keep adults behind bars while their children are not.
But the rise in split families comes from the administration practice to maximize criminal prosecutions and the manner in which authorities are carrying that out.
In 1997, the settlement of a class-action lawsuit set policies for the treatment and release of unaccompanied children who are caught at the border. The Flores settlement, named for a teenage girl who brought the case in the 1980s, requires the government to release children from custody and to their parents, adult relatives or other caretakers, in order of preference. If those options are exhausted, authorities must find the “least restrictive” setting for the child who arrived without parents. The administration wants Congress to pass legislation overturning the settlement.
In 2015, a federal judge in Los Angeles expanded the terms of the settlement, ruling that it applies to children who are caught with their parents as well as to those who come to the U.S. alone. Other recent rulings, upheld on appeal, affirm the children’s rights to a bond hearing and require better conditions at the Border Patrol’s short-term holding facilities.
In 2016, the 9th U.S. Circuit Court of Appeals ruled that child migrants who came to the border with parents and were held in custody must be released. The decision did not state parents must be released. Neither, though, did it require parents to be kept in detention, apart from their children.