The entire mass migration to our border and all its cascading ill effects can be traced to one thing: the Flores settlement’s expansion from children to family units by a single district judge. Flores is not a constitutional provision, a statute, or even a court ruling. It is a court settlement, designed as a temporary arrangement, that actually runs contrary to statute and has been used as a catalyst to undermine every bedrock law of sovereignty. After a full year of dithering, the Trump administration is finally using its unquestionable power to modify the settlement to finally end catch-and-release.
The Flores settlement, originally agreed upon in 1997 and modified in 2001, provided that government would only house alien children in “non-secure, state licensed” facilities or release them expeditiously until and unless the federal government writes a regulation to build its own licensing scheme ensuring the safe and sanitary conditions of the facilities. Given that there are no such state-licensed facilities, and the feds, until now, have not created their own scheme, it forced them to release unaccompanied minors expeditiously. In 2015, a California judge applied Flores to children accompanied by a parent as well, an order that was upheld by the Ninth Circuit the following year.
Flores is the source of all our border problems
It’s truly difficult to overstate the evil that expanded Flores has done to our security, our fiscal solvency, and Latin American children. By creating a huge market incentive to exploit children for mass migration by adults, it has:
Indeed, even if the wave were to end today, we will likely be seeing the effects of the crime wave and fiscal cost for years to come.
Under Flores, Trump has the power to terminate the settlement with a new regulation
This is where today’s announcement of a Flores modification comes into play. The law actually requires that these people be detained under most circumstances and does not place a time constraint on the detention, nor does it make exceptions for children. The constraint on holding children in certain facilities emanated from a court settlement that began in the 1980s and crystalized in 1997 as a temporary arrangement until 45 days after government promulgates a permanent regulation defining the parameters of the holding facilities for children along safe and sanitary guidelines laid out in the settlement.
Until now, courts have lawlessly “legislated” a 20-day deadline for holding children without such certified facilities or else they have to be released. Moreover, Judge Dana Sabraw created a new edict last year contrary to law that children can’t be released alone once they come with an adult and that the adult must be released with them. Thus, the expansion of Flores and Sabraw’s ruling spawned the worst period of migration in our history, where primarily one adult would come with one child, the perfect scam.
With today’s change, the Trump administration is fulfilling one of the options laid out in the Flores settlement by publishing regulations governing the treatment of detained minors. Officials have created a process for certifying the conditions of various facilities they now believe fulfill the conditions of Flores and can be designed to hold children with their parents. Thus, no family separation – and no catch-and-release.
The reality is that very few people will wind up in these holding facilities in the long run, because the minute they hear the scam is over, they simply will not come.
Therefore, it’s simply indefensible for anyone to oppose this move unless they downright want illegal immigration, the empowerment of human and sex smuggling, and all its other odious and cascading social, fiscal, and national security problems.
Trump administration needs to make the legalities stick for enduring change
The expansion of Flores to family units and the 20-day deadline were done by a single California judge, Dolly Gee. As a judge in the Central District of California, she is not even on the border. California is the entry point of only two percent of the family units who come here. The Trump administration needs to make it clear that there is no reason why California should control something that has not just national but catastrophic international effects. A Texas judge has already opined in passing that under these circumstances, catch-and-release of minors is not only not required, but is tantamount to the completion of a criminal conspiracy for the cartels that would get private citizens in trouble if they engaged in what the DHS is doing.
As such, any inevitable lawless injunction from Dolly Gee should be set aside by this administration, at least outside California.
Related to this point is the fact that this new regulation will not close the catch-and-release loophole of Central American children coming here alone without adults. However, as was made clear by Judge Andrew Hanen in 2013, given that many are self-trafficked and most of them are being delivered to their parents or relatives in the country, they do not meet the definition of an unaccompanied alien child described in 8 U.S. Code §1232(b). The law mandates they be turned over to HHS and be treated like refugees only if “no parent or legal guardian in the United States is available to provide care and physical custody.” (6 U.S. Code §279(g).) What is happening today, as Judge Hanen noted in 2013, is that the “parent initiated the conspiracy to smuggle the minors into the country illegally” and “also funded the conspiracy.” “In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors into the custody of the parent living illegally in the United States.”
Trump should demand that DHS lawyers stop hiding behind the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) as justification for this, and instead write a regulation requiring the deportation of any parents paying to traffic “unaccompanied” children rather than rewarding them with the results of their crime.
Furthermore, the administration needs to fully follow through with its promise to implement expedited removal for everyone at the border, including minors. Even the Ninth Circuit noted last week that part of why it is able to force expanded Flores upon the government is because “the government’s own regulations contemplate that minors in expedited removal proceedings may be considered for release,” mimicking the Flores arrangement. That needs to change along with this new regulation. Once the administration fully implements what Congress envisioned in 1996, Flores becomes unlawful, and all judicial proceedings against detention become moot.
Finally, Trump should push legislation empowering citizens to sue when illegal aliens are becoming a public charge. The reason we are in this position is because every illegal alien gets to sue our laws. Why not have an American “Flores” settlement” where government is forced to settle with the taxpayer by actually enforcing the law?
Overall, the Trump administration is slowly heading in the right direction. In addition to vitiating Flores, it has finally ended the practice of granting bogus asylees work permits pending their delayed adjudications. The key to enduring victories on the border, however, is to more aggressively push back against the judicial amnesty that created this problem in the first place. Trump must remind this very California court of its own adage on presidential powers related to this very issue: “The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” (Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996.)
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.