A federal judge has turned down President Donald Trump's request to alter a decades-old legal settlement to allow long-term detention of children who entered the U.S. illegally with their parents.

Los Angeles-based U.S. District Court Judge Dolly Gee dismissed as "tortured" the Trump administration's legal argument to get out from under the so-called Flores consent decree agreed to in 1997, dictating that children in immigration detention not be held more than 20 days.


"Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat," wrote Gee, an appointee of President Barack Obama. "It is apparent that Defendants’ Application is a cynical attempt...to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate."

An executive order Trump signed last month following a public outcry over the administration's policy of separating immigrant families instructed Attorney General Jeff Sessions to "promptly" ask the court to change the decree to permit a new approach of detaining children along with their parents. The Justice Department filed that request the following day.

Breaking News Alerts Get breaking news when it happens — in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. {{#success}} {{heading}} {{message}} {{heading}} {{message}} {{message}}

Gee's order says some immigrant families could be detained together if the parents' consent, but suggests that without that consent immigration authorities must release the children. That could leave the Trump administration with two choices: release the family or split them up, which Trump's June 20 directive pledged to stop doing.

"Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion," Gee wrote.


Justice Department attorneys have said they are trying to navigate between the Flores decree and an injunction a federal judge in San Diego issued last month requiring the reunification of as many as 3,000 children separated from their parents largely due to the zero-tolerance policy the Trump administration implemented earlier this year.

The policy sent nearly all adult illegal border-crossers to court for criminal prosecution, causing any children they were accompanying to be separated and transferred to the Department of Health and Human Services.

Devin O’Malley, a spokesman for the Justice Department, said the administration disagreed with Gee’s decision not to modify the settlement agreement and continues to review the ruling.

O’Malley said the decision acknowledged that suspected border crosser “will not be released,“ and must choose between family detention or requesting separation.


While Gee‘s order allows for parents to agree to be detained with children, she emphasizes in the ruling that an indefinite placement of a child in an unlicensed detention facility “would constitute a fundamental and material breach“ of the Flores agreement.

An appeal to the 9th Circuit Court of Appeals appears likely.

Trump has also urged Congress to step in to try to modify the 21-year-old consent decree, but it's unclear how many lawmakers would vote to bless a policy of detaining families for months or years.

At a hearing in the San Diego case Monday, Justice Department attorney Sarah Fabian said the federal government is likely to have only about half the young children separated under the former Trump policy reunited with their parents by a court-ordered deadline Tuesday. She said 102 children under 5 years old were separated and 54 of them should be reunited by Tuesday. The judge in that case, Dana Sabraw, set another hearing for Tuesday to get explanations for why the remainder of the children couldn't be returned on time.

Sabraw has ordered older children reunited with their parents by July 26.

Ted Hesson contributed to this report.