This post is the first in a series on the Trump administration's policy of separating families at the border.

Confirming over a year of suggestions, the Trump administration is apparently forcibly separating children from their parents at the border. Last fall, then DHS Security Kelly said that DHS was considering separating children from their parents at the border, only to walk back the suggestion after being pressed by some Senate Democrats. By the end the year, however, the administration was again purportedly weighing a plan to separate children from their parents. At the start of this month, Attorney General Sessions made the threat explicit: “If you don’t like that, then don’t smuggle children.” Chief of Staff Kelly backed up the idea, suggesting that family separation would deter unlawful border crossings. There was also a story about the President personally insisting on separating children from their families, as well as reports that the administration considering a proposal to keep children on military bases after yanking them away from their families.

The news that the administration is actually pursuing a policy of taking children away from their parents nonetheless still took some people by surprise. Two weeks ago, Chris Hayes documented the policy in a heart wrenching, bone chilling, and gut-punching segment.

In this post, I want to point out how immigration policies and laws that preceded the Trump administration made the separation of families possible, and previously resulted in the separation of families. Immigration law is notoriously broad, and it makes a lot of people both removable and detainable. Immigration detention facilities are also not always family-centric. The combination of those two things, legally permissible mass detentions and facilities that are not family-centric, led to some family separation in the past. And today it has allowed an administration that is both committed to the maximum enforcement of immigration law and has little regard for empathy and mercy to force more family separations.

In a future post, I will explain why the laws cited by the administration do not require the separation of families. In this post, however, I will explain why and how our unjust immigration laws have permitted it, and may even still permit it, at least in some instances.

To understand this issue, it is helpful to consider different possibilities for how children might cross the border. One possibility is that the minor enters the United States alone. Another possibility is that an entire family enters the United States together. The question in Ms. L v. ICE is what should happen to the children in families who enter the United States together.

Before 2001, families were generally not detained for immigration purposes in those circumstances, particularly where families claimed they feared returning to their home country and thus had credible claims for asylum. Things changed somewhat after September 11 when Congress passed some restrictive immigration statutes that, among other things, required the detention of certain persons who were subject to deportation or exclusion proceedings.

Some of the people who were subject to mandatory detentions may have arrived with family. But at the time the statutes were enacted, there were not really “family-centric” detention centers, perhaps because the US policy, up until then, was not to detain families. Some litigation had also resulted in policies and agreements that juveniles could not be detained alone with unrelated adults, in part because of the risks and violence and abuse that juveniles might be exposed to under those conditions. Responding to those concerns, the federal government constructed some juvenile detention facilities. Several cases, which I’ll talk more about tomorrow when I discuss the administration’s legal position, acknowledge that families were separated based on a lack of family-centric detention facilities. But, again, that did not include cases where families asserted credible asylum claims. And the prospect of separating families led some jurisdictions to create family-centric detention centers, which reduced (at least contingently, as I’ll explain in a second) the need for family separations.

While some statutes impose mandatory detentions, others make detentions discretionary. That is, the statutes allow the Attorney General and Homeland Security Secretary to decide whether to detain (or not detain) classes of persons, and the AG and DHS Secretary can decide whether to detain (or not detain) individuals on a case by case basis as well. An administration’s detention policy with respect to those statutes might affect whether an administration has the capacity to keep families together.

Imagine an administration that has a very lenient detention policy, and does not, as a general rule, detain persons who are not subject to mandatory detention, except in rare cases raising public safety concerns or flight risks. In that scenario, the number of existing family-centric detention centers (which is still not large) might suffice to ensure that any families who are detained are not separated. But imagine an administration that has a harsher detention policy—say an administration that has released several memos announcing it will detain just about anyone it suspects of being removable or excludable. What happens when the administration is detaining more persons and more families than existing family detention centers are equipped to house?

That administration has a choice: It could decide not to detain families in those circumstances (it could, among other things, decide to release families with monitoring devices). It could choose not to detain families until it builds more family detention centers. Or it could detain everyone and separate families for whom there is no room in family-centric detention centers.

To be clear, that is not what is apparently happening in Ms. L v. ICE. That is, the administration is not arguing that it does not have the capacity to detain families in family-centric detention centers. And there are, to be sure, limits on the extent to which an administration can opt to forcibly separate families even though it has the capacity to keep them together. For example, in January 2015, a group of Central American migrants challenged the government’s policy of purportedly not releasing Central American families. In R.I.L–R v. Johnson, 80 F.Supp.3d 164, 170 (D.D.C.2015), the District Court for the District of Columbia granted the plaintiffs' motion for a preliminary injunction, holding that DHS could not elect to detain families on the ground that doing so would deter unlawful immigration in the future. The court found that “DHS policy directs ICE officers to consider deterrence of mass migration as a factor in their custody determinations, and that this policy has played a significant role in the recent increased detention of Central American mothers and children,” and preliminarily enjoined the government from using deterrence as a factor in detaining the plaintiffs. Likewise, in Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2014), the court held that defendants could not refuse to release accompanied children (i.e., children who cross the border with their parents) and their parents on the ground that not releasing them would deter other families from attempting to cross the border. The court reasoned that DHS had offered no evidence to support its deterrence rationale. (This is, of course, the same rationale the Trump administration is purportedly relying on to separate families, as I noted above.)

What these hypotheticals illustrate is the idea that the breadth of immigration law, which makes so many people potentially removable and excludable, coupled with the discretion the executive branch has to detain persons for immigration reasons allows an administration to overwhelm the capacity of family-centric detention centers simply by detaining all of the people it could.

One additional wrinkle: What if an administration has the physical capacity to keep families together in detention centers, but lacks the practical ability to keep them safe? That is, what if the government chooses to put a child’s parents in a very unforgiving detention facility that is not set up for family detentions? Or, more sympathetically, what if the government has to put a child’s parents in a very unforgiving detention facility because there is no room in other facilities, and the parent is subject to mandatory detention?

There are some grounds on which an administration might try to justify family separation in those circumstances—that is, in individual cases, as opposed to writ large (as this administration is apparently doing). Assume that a child’s parents are subject to mandatory detention, and imagine that the available detention centers are formally family centric, but have a long history of abuse and violence. Imagine also that there are juvenile detention facilities with no similar risk of violence (this might be pure imagination, as the ACLU’s report (and subsequent addendum) on ICE’s treatment of undocumented children suggests). In those circumstances, an administration might argue that separating a family is in a child’s best interest, and that the child’s parents can’t ensure the child’s safety while in the detention facility. As this Washington Post pieceby Margo Schlanger and Michelle Brané alludes to, there are very good reasons not to leave children in the custody of immigration and customs enforcement and border patrol.

Alternatively, imagine that there are policies allowing for the release of juveniles, but not of adults. (There are actually such policies; they include the Office of Refugee Resettlement’s sponsorship program.) Here too, an administration might plausibly argue that it is in the best interests of the child not to be housed in detention facilities, and the abuses that have occurred in immigration detention centers might give these arguments a ring of plausibility.

Under circumstances like those described above, families would still be separated, but only in particular cases where there was no room in family-centric or comparatively safer detention facilities. Families would also not be separated in all cases in which parents are being detained (as is purportedly happening now). Even then, however, one might wonder whether the decision to separate the family should be the family’s, rather than the administration’s—that is, perhaps a just system would allow the family to decide whether to stay together in a harsher ICE detention facility, or be separated. One might also wonder why ICE can detain a child’s parents in a facility that is so unsafe that ICE cannot ensure the safety of persons in it.

It is not clear whether the laws permit an administration to separate families on the ground that ICE has detained the parents in a non-family-centric detention facility, particularly where other options are available to the administration (such as choosing a family-centric detention facility, or perhaps making detention facilities where it can ensure detainees’ basic safety). It is also far from clear that juvenile detention facilities are safe, or safe enough to justify separating children from their families. There are also serious questions about ORR’s oversight of the “sponsorship” program, under which it releases minors to the custody of other persons, and whether it reliably safeguards children’s interest. Consider reports that ORR has, in the past, released some children into the custody of human traffickers, and has also not been able to follow up on the whereabouts of thousands of children as part of the sponsorship program. Under those circumstances, the administration would be making family reunification hard, if not impossible, once it separates a child from the child’s parents. And the increase in the number of detentions is likely to over-burden the system more, making it even more difficult to keep track of families and ensure reunification.

To wrap up: The administration is taking the position that laws require it to separate children from their families once ICE takes parents into its custody. For reasons I’ll explain tomorrow, that is not the case. The harder question is whether the administration is even permitted to separate families, at least in some circumstances, when ICE takes parents into its custody and detains them in harsh, unsafe detention facilities that are not family centric.

The reason that question is hard, however, is because, until now, we have largely ducked questions such as: How many people can an administration detain for immigration reasons, and for how long can it detain them? Can an administration detain families in general, and when a member of the family may be subject to mandatory detention in particular? And in what conditions is it permissible for an administration to detain people—families, children, and anyone? Until now, our system has largely allowed ICE to detain persons who are potentially removable or excludable, for as long as it deems necessary, and to hold them in shocking, inhumane conditions.

The Trump administration shows that’s more than a bad idea; it’s a terrible one.

@LeahLitman

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