President Trump on Wednesday signed an executive order to stop family separations at the U.S.-Mexico border, which relies on the modification of a 1997 federal court decision.
The decision, Flores v. Reno, known as the “Flores settlement,” was first reached in 1997. It required immigration authorities to release children from immigration detention after 20 days.
The settlement was revised by the U.S. District Court for the Central District of California in 2015, which required authorities to prioritize family reunification “without unnecessarily delay” to a close relative or family friend, or to keep an immigrant child in custody in the “least restrictive conditions.”
In Wednesday’s order, Attorney General Jeff Sessions was prompted to file a request to modify the settlement which would allow the Department of Homeland Security to “detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Gene Hamilton, counselor to Sessions, told reporters late Thursday that, despite the executive order, Flores still holds.
[Also read: Trump administration could be holding 30,000 border kids by August, officials say]
“It’s certainly the case that right now we have lawful authority to detain a family unit together for up to 20 days,” he said.
“The simple fact of the matter is that [the Flores settlement] has put the executive branch in this untenable position,” said Hamilton.
A Justice Department official told the Washington Examiner it could file the request, which would allow them to detain minors with parents beyond the 20-day window, to U.S. District Judge Dolly Gee “in the coming days.”
Upon being picked up, a whole family unit will now be transferred to Immigration and Customs Enforcement.
[Also read: 301 migrants who arrived at border over past seven months not family units: DHS]
Before the executive order, the adult would go into the U.S. Marshall’s custody. The children were placed in ICE custody and then Health and Human Services would place them in housing, while the parent or parents would go through criminal improper entry or immigration proceedings. These are where the photos that have caused the latest outcry were taken.
The Justice Department official again implored Congress to act within the next 20 days.
If the settlement is not modified, the government will be in violation of the Flores settlement.
A former senior Justice Department official told the Washington Examiner that Gee is probably “not going to like this.”
“She’s going to hold the government in contempt,” the official said. “She could literally throw people in jail if she wants to.”
The official added: “If you’re held in contempt, they keep people in jail until the policy changes. You can create a constitutional crisis when you disregard a court order. The judge will say, ‘Stop [detaining minors for more than 20 days] immediately.’ If Trump says, ‘I will not stop this,’ his administration can be held in contempt.”
