The Trump administration has announced a new rule that would allow it to hold immigrant children in detention indefinitely, a massive shift from the current limit of 20 days. This controversial decision has been met with sharp criticism from the American Civil Liberties Union (ACLU), which tweeted a response, writing “The government should NOT be jailing kids, and certainly shouldn’t be seeking to put more kids in jail for longer. This is yet another cruel attack on children, who this administration has targeted again and again with its anti-immigrant policies. Congress must not fund this.”
This new Trump administration rule, which will almost certainly face a flurry of legal challenges, was announced in a statement by acting Homeland Security Secretary Kevin McAleenan. The new rule would seek to undo the Flores Agreement that mandates that children can be detained for no more than 20 days. The Trump administration claims the rationale for the new rule is that immigrants currently are more likely to bring children with them out of a belief that the Flores agreement would make for only a limited detention period for their family, so they would be released while their immigration case is considered by the courts. So, the administration claims, the new rule would take away some of the incentive for immigrants to bring children with them and so would make fewer immigrants with children likely even to make the attempt to come to the U.S. The wildly unpopular practice of family separation was one way the Trump administration previously sought to get around this issue, but with that plan a failure, it now seeks to be able to hold immigrant children in detention with their parents for indefinite periods of time while their immigration cases play out in the courts.
The Trump administration asserted, with the announcement of this rule change, that such cases can be resolved within 90 days. However, this runs counter to previous statements the administration has made saying that releasing migrants pending court proceedings was in part disagreeable because it could take multiple years for a final decision in the court case. The administration, aware that the new rule will have to be considered by the judge who originally heard the case resulting in the Flores agreement, has attempted to add within the new rule, the text of which is several hundred pages long, provisions to have improved conditions for the detention of immigrant families. According to The Hill:
The Trump administration on Wednesday said it would unveil a new rule that would allow migrant families to be held indefinitely, ending a procedure known as the Flores Settlement Agreement that requires children to be held no longer than 20 days. …Under the terms of the 1997 consent decree that eventually led to the 20-day limit in Flores, the regulation must be approved by Judge Dolly M. Gee of United States District Court for the Central District of California, who heard the original case. …Trump officials have sought to address Gee’s concerns with indefinite detention by creating a federal government licensing regime which includes public audits of facilities conducted by a third party. And McAleenan painted a rosy picture of family detention units under the new rule. …He added the facilities would include medical care and educational wings, as well as leisure activities for detainees. But DHS has bed space for 2,500 to 3,000 individuals in family units at current funding levels, a fraction of the number of Central Americans who claim asylum every month.
Of course the conditions in which immigrants are being held has already been at issue, with multiple members of Congress, upon visiting some of the facilities, describing overcrowding and poor sanitary conditions. The administration’s claims that conditions for families in detention will be improved are likely to be met with a great deal of skepticism. Even if the rule meets with Judge Gee’s approval, which is doubtful, there will likely also be lawsuits against the rule brought by outside entities, possibly including the ACLU, which could delay its implementation for a protracted period of time. Congress is also unlikely to pass legislation for the increased funding this rule would require, since it would have to pass through both the House and the Senate, and the Democratic-majority House would almost certain condemn this rule and so refuse to fund its implementation.