The Fox Is Now Guarding the Hen House

And Congress is to blame.
by Kim Wehle
August 27, 2019
Featured Image
In this photo from June 2019, Central American migrant families arrive at a Catholic Charities respite center after being released from federal detention in McAllen, Texas. A newDHS regulation allows the Trump administration to keep families with children detained indefinitely in government facilities. (Photo by Loren ELLIOTT / AFP) (Photo credit should read LOREN ELLIOTT/AFP/Getty Images)

Last week, the Department of Homeland Security issued a final rule effectively giving Immigration and Customs Enforcement authority to detain migrant children in secure facilities—aka jail-like ones—indefinitely.

The kids go to “jail” only if they come across the border with adults. Kids who come alone can’t be jailed. Since 2008, a statute gives unaccompanied children who enter the United States certain rights against the government to ensure their proper treatment. Congress hasn’t bothered to pass legislation to protect kids who come with grown-ups. 

The rights of those kids have instead been governed by a court order known as the “Flores settlement,” which resolved a lawsuit against the agency formerly known as the Immigration and Naturalization Service (INS) in 1997. The lawsuit was filed as a class action in 1985 in response to an unnamed Hollywood actor whose housekeeper’s teen daughter was being detained indefinitely by INS in a makeshift facility—an old hotel surrounded by a chain-link fence. The girl had been strip-searched and was forced to share living quarters and bathrooms with male adults. The housekeeper was afraid to claim the girl for fear of being deported.  

The Flores settlement required that the government provide certain minimum standards for the detention, release and treatment of children in immigration custody—including food, clothing, medical and dental care, an educational assessment and plan, grooming items, recreation time, English language training, an assessment of immediate family members in the United States, and a host of other protections. If the child wasn’t handed off to an appropriate adult within a few days, the Flores settlement required the government to place the child in a non-secure (i.e., non-jail-like) facility that’s licensed by a state as qualified to care for children.

In 2015, the court interpreted the Flores settlement to limit the government’s power to detain a child to 20 days—the approximate amount of time it takes for the government to process an asylum application. 

As a practical matter, what the Flores settlement has meant is that if a migrant child comes to the U.S. with an adult, the child can’t be thrown in a jail-like place indefinitely. If the government aimed to keep a child with her parent, then neither could be put in a secure facility for long. Because there exist few (if any) state-certified “family” facilities that comply with the Flores settlement, the Obama administration released adults with minors—a process that became known, pejoratively, as the “catch-and-release” policy.

President Trump took a different approach: Pull children away from their adult caretakers, put the kids in separate facilities, and toss the parents in a jail equivalent. Well more than 3,000 kids have been snatched from their trusted adults by strange foreigners under President Trump. There’s no way around it: For these children, we’re talking trauma, trauma, and more trauma. 

After 22 years, the government finally passed regulations to supplant the longstanding policy memorialized in the Flores settlement. A few takeaways about the new rules:

1) Like them or not, the regulations reflect Congress’s inexcusable failure to pass a statute protecting accompanied minors. Conservatives routinely assail administrative agencies for regulatory overreach—but Congress is to blame for that across the board. This particular policy should not come from unelected bureaucrats in Homeland Security. It should come from electorally accountable legislators. Once again, shame on Congress for abdicating its constitutional mandate.

2) That said, the regulations are deeply concerning. They eliminate the requirement that kids be held in facilities licensed by the state as qualified to care for children. The new licensor? ICE. That’s right. The fox gets to guard its own hen house and set the standards for detention of migrant families. Whereas facilities run by U.S. Customs and Border Protection are subject to some governmental oversight, the new ICE facilities are to be audited by private, third-party contractors. Yikes.

Let’s not forget that the Trump administration’s current detention facilities cost approximately $775 per day per child—a fee that mostly goes to private third-party contractors to house kids in desert tents with inadequate food, lice infestations, influenza outbreaks, and overall filth. The inspector general of Health and Human Services confirmed “dangerous overcrowding and prolonged detention of children” and—separately—that ICE inadequately inspect and monitors these facilities. The notion that future ICE “family” detention camps—not bound by state certification standards—will magically hit all the humanitarian marks is beyond dubious. 

3) The 20-day rule is gone, meaning that kids can be held indefinitely if they come with adults. The regulations also make it harder for kids to be “paroled” (that is, released). Some might argue that this situation is better for families than separation—at least they are with adults they know—but let’s not forget what we are talking about here: putting kids in prolonged “jail” simply because they enter the U.S from another country without prior authorization. According to the United Nations, detaining kids violates international law—not to mention basic norms of humane conduct. 

4) In its 57th lawsuit against the Trump administration, California has already challenged the new rule in federal court, along with 18 other states. As a matter of the separation of powers, this is cold comfort. What lawsuits mean is that the regulations—essentially, laws created by the executive branch—will be reviewed by the third branch of government: the federal judiciary. The federal courts will look to existing statutory law and the Constitution for guidance. But federal courts aren’t accountable to the voters any more than agency bureaucrats are. Even if the courts strike down the regulations, the most likely outcome will be to give agency employees another bite at the apple. Meanwhile, Congress sits idly by doing nothing—while more and more innocent children are thrust into trauma. 

Many people’s answer to this pediatric disaster is that it’s the parents’ fault—”don’t bring your kids here if you don’t like the consequences,” the argument goes. But seeking asylum in the U.S. in order to keep your family safe and alive is not a crime—it’s perfectly legal in America.

The issue isn’t whether to enforce the immigration laws. It’s how. The United States must be willing to devote the money and resources needed to humanely enforce its immigration laws. That means a massive increase in the number of agents at the border and the number of judges deciding immigration claims, as well as the construction of proper facilities that are fully staffed with basic supplies and qualified personnel—including people who can meet the myriad medical, psychiatric, educational, and recreational needs of migrant children. That’s simply not happening. Unless we are willing to put our money where our mouths are, it’s the taxpaying public—not law-abiding migrants—who should face the consequences of congressional inaction.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).