President Trump just announced he will “sign something” in order to address the separation of families issue illegal immigrants face when attempting to enter the US. This is apparently what Chuck Schumer and others have been screaming for, but we have yet to see what the “something” will contain.

We’ve heard a lot about the Flores consent decree – a case originating in 1985 and finally settled in 1997. This consent order mandates that the government comply with certain standards on the detention of illegal immigrant children. One such standard was that they cannot be held in a secure facility (i.e. jail) for more than 20 days. This rule runs afoul of Trump’s zero tolerance policy (AKA Obama’s “no-release” policy), which follows the law in referring for prosecution anyone who enters the US illegally. Zero tolerance means that no one will be released into the community, and all will be held in custody until prosecuted. This necessarily means that any accompanying children must be separated from the parent, because it would be stupid and dangerous to allow children into an adult detention facility.

While Obama had the exact same no-release policy as Trump, Obama did attempt to keep families together. For this sensitive and kind effort, he was sued!! His administration erected and staffed family detention facilities. These facilities were not licensed and did not have oversight from the child-interest side of the equation, though they did comply with all other immigration regulation – just not the Flores agreement which was focused on children.

In 2015 a California District Court ruled that Obama’s family detention centers were in violation of the Flores agreement. Detaining families together would seem to be a middle ground compromise in this situation, and has been recently suggested by many criticizing Trump, but in fact Trump is right. This solution is illegal under the law – if we are to maintain a policy of actually prosecuting illegal entry. However, if we allow a catch and release policy then no Flores violation! How convenient.

It remains to be seen what kind of an executive order Trump will sign. His lawyers should be well versed that any middle ground holding facility will not meet Flores standards. By the restrictions of his executive power he could not rightfully suspend Flores. That would be a terrible response for several reasons – minor children should not be held in detention, and the protections provided by the Flores agreement, while stringent, were carefully crafted through private and government consent. Undoing those should demand more thoughtful effort than an executive order produced on the fly.

Will Trump authorize a relaxed standard to his zero tolerance policy? Perhaps there is room for discretion, as it might be easy enough to determine who would be a flight risk, who poses a danger to the public. But, in this day and age of terrorism, drug trafficking, gang migration, and human trafficking, a criminal doesn’t always look like we think they might look. Certainly if this standard is relaxed, some bad guys will get by. Is that a risk we are willing to live with?

Further, relaxing of the standard, or providing some in between housing/detention solution is sure to incentivize this behavior regardless of the legality of the solution. There is no harm in the law having a deterrent quality. Liberals state that deterrence is some kind of hidden evil (Trump’s people admitted they hoped it would deter this behavior!!!) – in fact, all law either incentivizes or deters – that is the purpose of law! Incentivizing parents or other adults to bring children on these harrowing journeys is immoral in and of itself. In so far as a potential executive order would do that, it should be avoided.

Stepping aside from the predictable executive order route, it would be fully in keeping with Trump’s MO to do something not on anyone’s radar at the moment. He may be supporting stand alone legislation, or some other way to address the problem. It will be interesting to see how he threads the needle on this one.

Democrats might be looking at this as a victory, but if in fact Trump manages to smooth out this situation he will the one to benefit politically. Which is why no matter what he does, they will continue to scream.

UPDATE: Here is the order! In contrast to my astute predictions, Trump put into place the exact same guidance as did Obama in 2014-2015 – and we already know the court struck down Obama’s arguments then. Trump has instructed DHS to keep families together in family detention centers, and to ask the Flores court for modification of the order. This order seems frivolous in that this position has already been tried and rejected. Stay tuned for more law suits. Who said Trump isn’t helping the legal industry to stay robust and relevant?!