The media breathed a collective sigh of relief after Trump unveiled his latest Executive Order aimed at preventing the separation of illegal immigrant parents from their children, but had they taken the time to read and analyze the document before responding, they’d have seen that they were deceived by The Donald and that his decree has more holes in it than Swiss cheese.
Judging by media accounts over the past day and even as portrayed by Trump & his press team themselves, Americans would be forgiven for thinking that illegal immigrant parents will never be separated from their children again after the Liberal-driven scandal over the continuation of a controversial Obama-era policy took the nation by storm. After reading the actual Executive Order, however, it becomes clear that there are more holes in it than Swiss cheese, and that the number of conditional workarounds present in the document suggests that not much will probably change in practice apart from a few highly publicized cases strategically focused on in order to deflect negative media attention.
The reason for this pessimism is explained by the following clauses:
(all section summaries and underlined emphases are the author’s own)
Section 1 – Ambiguities From The Get-Go
“…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’s unclear whether “together” means in the same cell/group holding area or simply in the same facility, and “appropriate” is subject to interpretation. It’ll also soon be seen that Trump doubts that the “available resources” for implementing this ambiguous policy exist at this moment, thereby indefinitely perpetuating the status quo.
Sec. 2 (b) (iii) – Proving “Legal Parent-Child Relationship”
“[An “alien child”] has a legal parent-child relationship to an alien who entered the United States with the alien child…”
There’s nothing in the Executive Order about how the “legal parent-child relationship” would be determined, though Attorney General Jeff Sessions suggested that DNA tests would be a good starting point. Even if the White House successfully carries out these tests (and irrespective of whether it abuses the findings to expand its genetic database or sell the results to Silicon Valley), that won’t prove a parent’s legal custody if only one of them is travelling with the child at the time that they’re caught.
In order to ensure that the said adult isn’t smuggling the child across international lines without the consent of the other parent, a corresponding safeguard mechanism must also be included in this plan. Since many illegal immigrants travel without documentation, this might naturally be very difficult to follow up on without close coordination between the US and Mexican authorities, though the Trump Administration isn’t likely to waste time and money on this and might therefore separate the child and parent out of an ‘overabundance of caution’.
Sec. 3 (a) – Legal And Resource Limitations
“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.”
Once again, legal and resource limitations are presented within the document, with the first-mentioned conditional explained in the next sub-section while the second one will follow it.
Sec. 3 (b) – Retaining The Open-Ended Right To Separate Children From Their Parents
“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.”
The key phrase about “concern… (of) a risk to the child’s welfare” is very open-ended and therefore bound to be interpreted by the authorities according to the most ‘convenient’ outcome for them. The state could possibly argue that it might be ‘unsafe’ for the child to be housed in the same group holding area as their parents because there’s no way to know that any of the other detainees aren’t pedophiles. Therefore, the most likely ‘workaround’ would be to intern them in the same facility as their parents, though still nevertheless keeping them physically separated except during brief supervised interactions.
Sec. 3 (c) – Insufficient Facilities Might Lead To Unfulfilled Expectations
“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…”
As was referred to in the author’s analysis of previous passages, the US evidently lacks the physical resources to house every detained migrant family together after the legal parent-child relationship has been definitively established beyond any doubt, which is why it may need to construct more in the future. There’s no timeline on how long this will take, or independent and transparent oversight of this process and the considerations that go into determining whether more facilities are needed, so it could conceivably be delayed indefinitely or never happen to the extent that’s expected.
Section 4 – Expedited Processing Might Make The Whole Point Moot
“The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.”
The Trump Administration’s “zero tolerance” policy of detaining all illegal migrants and the Executive Order’s decree to expedite their processing might combine to create a formidable border security cocktail that fast tracks the removal of all non-asylum detainees (e.g. “economic migrants”) and makes the whole issue of family separations moot, with the process eventually being streamlined to the point where it becomes common knowledge that the vast majority of people will be denied entry to the US and sent back across the border almost as soon as they cross it.
Upon closer examination of Trump’s highly touted Executive Order, the media’s knee-jerk reaction in describing this as an ‘embarrassing capitulation’ for the President speaks to their failure to understand his perception management strategy, since the reality of the situation is that he really just used their leftist-liberal tactics against them in masterfully manipulating the optics to portray his action as the opposite of what it truly is, which is more or less retaining the status quo despite describing it differently in ‘legalese’.
DISCLAIMER: The author writes for this publication in a private capacity which is unrepresentative of anyone or any organization except for his own personal views. Nothing written by the author should ever be conflated with the editorial views or official positions of any other media outlet or institution.