WASHINGTON, D.C. — In a rare retreat amid continued outrage about his “zero tolerance” policy at the southern border, President Donald Trump on Wednesday signed an executive order to end the separation of immigrant families.
His directive was expected to keep families together but in indefinite detention. That likely would open a new legal battle, over a landmark 21-year-old court settlement known as the Flores agreement under which the federal government agreed to hold minors no longer than 20 days.
Earlier in the day at the White House, speaking at the center of a table surrounded by Republican senators and House members, Trump said, “We’re going to keep families together but we still have to maintain toughness or our country will be overrun by people, by crime, by all of the things that we don’t stand for and that we don’t want.”
“If you’re weak, you’re pathetically weak, you’re country’s going to be overrun with people,” Trump said. Scoffing that some equate being strong with having no heart, he added, “I’d rather be strong.”
Trump’s reversal on the six-week-old family separation policy was remarkable given his aversion to ever admit error or back down. That reflected the White House’s desperation to quash one of its worst crises to date — over a policy that drew condemnation from Republicans as well as Democrats, all four former first ladies, and conservative and liberal religious leaders.
Yet Trump risked angering the most anti-immigrant elements of his base, after days of insisting that family separation was an essential part of a tough immigration agenda to end what he calls his predecessors’ lax border enforcement, and prevent children from being used as “keep out of jail free” cards by child smugglers and other criminals.
The crisis had consumed his administration for days as Republicans and Democrats reacted to searing pictures and audio of young migrant children crying at being separated from their parents after crossing the border from Mexico, many to seek asylum from violence in their home countries.
The administration said more than 2,300 children were taken from their parents, who are detained for criminal prosecution, and held in separate detention facilities in 17 states. The separations climbed rapidly after the administration began its “zero tolerance” policy in May, requiring more criminal prosecutions rather than civil deportation actions.
In the George W. Bush and Obama administrations, people crossing the border illegally or seeking asylum were released pending civil hearings in immigration courts. Trump has claimed as recently as Tuesday that 80 percent of those released never showed up for their court dates and disappear into the country, but federal data suggest that most do show up, though a significant number are unaccounted for.
As the administration and Republican lawmakers sought to resolve the crisis, the signs of confusion were evident.
Kirstjen Nielsen, the Department of Homeland Security secretary, spent the morning at the White House, urging Trump to pursue congressional action to end the separation of families at the border, according to an administration official. Attorney General Jeff Sessions, the longtime anti-immigration advocate who announced the family separation policy in May, was at the Capitol to meet with exasperated Republican lawmakers.
Officials said the administration is not ending its “zero tolerance” policy, which criminally prosecutes more people who cross the border illegally. Instead, the administration is looking at how it can override or overturn a 1997 legal settlement known as Flores that restricts the amount of time that families can be held in immigration lock-ups together, the official said.
The administration has argued that the settlement forced it to lock up children separately from their parents. Past administrations mostly avoided that by releasing the parents with their children pending civil hearings, and by not pursuing criminal prosecutions as well as civil deportation actions.
The Trump administration is considering a lawsuit to challenge that settlement. Also, the president’s order, assuming it holds children in detention for longer periods than currently permitted, is likely to invite a legal challenge. That is why some in the administration advocate a legislative solution, and why Trump said he expects his order to be followed by action in Congress.
