Important headlines for June 21st – The Executive order that amends immigration law
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Affording Congress an Opportunity to Address Family Separation - President Donald Trump
This is the actual executive order:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:
Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.
Sec. 2. Definitions. For purposes of this order, the following definitions apply:
(a) “Alien family” means
(i) any person not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and
(ii) that person’s alien child or alien children.
(b) “Alien child” means any person not a citizen or national of the United States who
(i) has not been admitted into, or is not authorized to enter or remain in, the United States;
(ii) is under the age of 18; and
(iii) has a legal parent-child relationship to an alien who entered the United States with the alien child at or between designated ports of entry and who was detained.
Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally. (a) The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.
(b) The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.
(c) The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(d) Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(e) The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.
Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
Hot Take: First, there's something important to note. Did Donald Trump sign an executive order to initiate the process of family separation? No, he did not. That's telling for two reasons. First, it once again illustrates that it was not the policy of the Trump administration to separate families. The reason it happened without executive action by President Trump is because of it being the law of the land. The same law applied with the same process carried out during the Obama administration. That the president has taken executive action to change policy that's within existing law potentially isn't even entirely legal. Were there a legal challenge to this order it might not stand. This would be akin to President Obama's DACA status through executive action rather than through the lawful process.
What the president did make clear is the intent and the need to change the law. Hence the name of the executive action. Hopefully that's the constructive outcome that amounts from this. For how many years have we talked about immigration reform? Maybe this will finally be the catalyst to get it done. That'd potentially make this process worthwhile.