For weeks, President Donald Trump and his administration claimed that they would prefer to keep families together in immigration detention — but had no choice but to separate them at the US-Mexico border so parents could be prosecuted for illegal entry.

Now, Trump’s executive order — which some in the press are reporting as a “reversal” or “relenting” on family separation — simply directs the administration to do the thing they said they couldn’t do: keep children along with their parents in immigration detention while the parents are prosecuted, and while the family’s immigration case is resolved. The Trump administration is hoping this will result in their speedy deportation, but if not, it’s now willing to detain the family indefinitely.

The executive order is titled “Affording Congress an Opportunity to Address Family Separation,” and that’s not just wishful thinking. The Trump administration will need Congress to act quickly to validate the decision to keep families detained indefinitely. If Congress fails to act, it’s unlikely that the federal judiciary is going to allow this order to stand in its current form — because it appears to violate the 1997 Flores settlement that the administration cited as the reason it couldn’t detain families indefinitely to begin with.

The order doesn’t require Trump to stop separating families at the border — but it probably will end wide-scale family separation.

The Trump administration always said it wouldn’t waste the money and time to separate families if it could only detain them together. Now it’s going ahead and doing that, and waiting for forgiveness instead of asking for permission.

Trump’s executive order clears the way for DHS to detain families together

Here’s what the executive order actually does.

Allows people to be prosecuted for illegal entry without being sent into the custody of the Department of Justice — thus allowing parents to be kept with their children. The order directs the Department of Homeland Security to keep families in its custody until both the criminal case against the parent and the immigration case against the family are completed. When a family is seeking asylum, that can take weeks or months.



The Trump administration directs the Department of Justice (which runs immigration courts) to prioritize the immigration cases of detained families — which raises concerns about due process (given the last time that families were detained in an expedited process). The directive will also result in other immigration cases being pushed back even further in the backlogged immigration courts.

The order directs the Department of Homeland Security to keep families in its custody until both the criminal case against the parent and the immigration case against the family are completed. When a family is seeking asylum, that can take weeks or months. The Trump administration directs the Department of Justice (which runs immigration courts) to prioritize the immigration cases of detained families — which raises concerns about due process (given the last time that families were detained in an expedited process). The directive will also result in other immigration cases being pushed back even further in the backlogged immigration courts. Uses other departments — including the military — to house migrant families if needed. Immigration and Customs Enforcement doesn’t even have room for all the adults it’s keeping in detention — which is why it had to send 1,600 detainees to federal prisons two weeks ago. Now it’s being told to detain thousands of children as well. To accommodate this, the Trump executive order allows the military and other departments to provide space and facilities if needed for migrant families.

Immigration and Customs Enforcement doesn’t even have room for all the adults it’s keeping in detention — which is why it had to send 1,600 detainees to federal prisons two weeks ago. Now it’s being told to detain thousands of children as well. To accommodate this, the Trump executive order allows the military and other departments to provide space and facilities if needed for migrant families. Tells Attorney General Jeff Sessions to ask the courts to change their mind and declare family detention to be legal. The Flores settlement, as it was interpreted by courts under President Obama, prevents the federal government from keeping children in immigration detention for longer than necessary — and that applies to children who are being kept with their parents as well as those who come to the US without adults. Under Obama, the courts ruled that 20 days was about the limit of how long “reasonable” would be — but any asylum proceeding that takes 20 days or less is going to be legally suspect from a due process perspective.



So it’s very likely that this executive order will lead the government to violate the Flores settlement as it stands now. Trump’s solution is to tell Sessions to ask the federal courts to amend the settlement to allow him to detain families together as long as needed.

Will Congress back up Trump before the courts step in?

It is unlikely, though not impossible, that the courts will agree to Sessions’s request. After all, families being held in hastily repurposed facilities while their deportation cases are fast-tracked is exactly the situation, under the Obama administration, that led to the current Flores rules.

Congress can preempt this by passing legislation of its own that would overrule Flores. That might mean simply allowing ICE to detain children in the exact same facilities it detains adults in now, with no added requirements to protect children’s safety. Or it might (theoretically) replace the Flores settlement with new standards for family detention, though no bill that has been introduced so far appears to do that.

The immediate upshot of Trump’s executive order is that the infrastructure that’s been slapped together in the past several weeks to facilitate family separation will be succeeded by a slapped-together infrastructure to facilitate family detention — and deportation.

The conditions are unlikely to pass legal muster. Migrants may be deprived of any meaningful chance to prove that they need to stay in the US to escape persecution. But at least the family will be able to go through it all together.