The Flores settlement forces a choice between enforcing immigration law inhumanely or not at all. There is a third way.
An ugly conundrum lies at the heart of the border crisis dominating our news coverage and social media feeds, complete with the sights and sounds of children separated from their parents: Under a 1997 settlement between the federal government and immigration activists, the government must choose between enforcing the law inhumanely and not enforcing it at all. The consent decree, known as the Flores agreement, was the product of nine years of litigation over the detention of unaccompanied minors apprehended crossing the border. It requires detained minors to be released as expeditiously as possible.
In 2015, the 9th Circuit interpreted Flores‘ requirement that minors be released “without unnecessary delay” to mean that all minors—including those traveling with their families—must be released within 20 days. Therefore, if a family is apprehended at the border and claims asylum, Immigration and Customs Enforcement (ICE) must either: 1) detain the parents pending their asylum hearing and separate the children, or 2) release everyone and hope they show up for their hearing (many do not). In other words, the administration must choose between a policy that separates families and a policy that effectively opens the border.
The Obama administration willingly, perhaps happily, chose non-enforcement. The Trump administration originally did, too, but it shifted to what it described as a “zero-tolerance” approach in April, nominally to pressure Congress to enact a viable alternative. Congress, however, did what it does best and simply punted on the issue. (More accurately, Sen. Chuck Schumer refused to consider fixes offered by the GOP because he “wanted to keep the focus on Trump.”) Trump relented and signed an executive order Wednesday that ostensibly solves the problem by authorizing families to be housed together pending their asylum claims. In reality, his order will almost certainly be blocked by the courts, and we will revert to non-enforcement. Since then, the GOP-led House of Representatives has struggled to bring immigration legislation to the floor, and Trump has tweeted to the effect that it doesn’t matter because any legislation would need Democratic support in the Senate.
How do we enforce our immigration laws if the federal government is bound by a consent decree that an executive order cannot override and Congress is incapable of fixing? A third option is available to the White House. The Flores agreement is treated by most observers as an intractable obstacle that will exist in perpetuity until Congress passes a superseding law, but that is not actually the case. The agreement, by its terms, terminates 45 days after it is codified in a federal rule promulgated by ICE. Flores remains in effect today only because the federal government has yet to implement that rule. Creating and implementing a federal regulation cannot be accomplished overnight, but the process can almost certainly be completed well before Congress gets its act together (if it ever does). First, ICE must publish notice of the proposed new rule and give the public a reasonable time (usually 30 to 60 days) to submit comments to the agency in support or opposition of the rule. After the notice and comment process, the agency can finalize the rule and publish it in the Federal Register with a specified date that it will become effective (the effective date must be at least 30 days after the final rule is published). In short, once this process is completed, the Flores consent decree will terminate forty-five days from the “effective date” specified in the final rule.
Thus, the Trump administration can terminate Flores’ status as an independent, stand-alone consent decree by formalizing its terms in a federal regulation. The administration would then have two options. The simpler option is announcing its own interpretation of the regulation after the rule is finalized and arguing that its interpretation takes precedence over the 9th Circuit’s prior interpretation of the consent decree—the Auer Deference doctrine, established by the Supreme Court, requires courts to defer to an agency’s interpretation of its own regulations unless that interpretation is plainly erroneous. Under this scenario, ICE can interpret its regulation as applying only to unaccompanied minors and not to minors who cross the border with their families.
The second option is to subsequently repeal the rule at a later time through the same notice-and-comment process through which it enacted it, at which point there would be no Flores agreement on the books and no federal regulation containing its terms. Theoretically, the administration would then be free to detain those apprehended at the border pending adjudication of their asylum claims while also housing families together humanely (a policy a plurality of Americans support).
The odds of Congress passing a legislative fix are low, and they will drop to zero until at least 2021 if the Democrats reclaim the House in November. Consequently, an administrative law strategy to terminate the Flores agreement might be the administration’s best chance of reforming immigration enforcement before Trump runs for re-election, unwieldy as the process may be. Interestingly enough, ICE has already laid the foundation for such action by proposing a rule to “codify the substantive terms” of the Flores agreement.
If Congress remains impotent, the administration should solve our immigration paralysis through constitutionally permissible administrative action. In a healthy republic, public rights and responsibilities are altered by legislation instead of administrative contortion. But a healthy republic also does not ask the executive to choose between enforcing an unjust law and enforcing no law at all.
