President Trump signed an executive order mandating families be kept together after being detained at the border, and House Republicans still want to tackle the issue legislatively. Yet some wonder whether they’re causing a new problem by trying to solve the old one.
That’s because their comprehensive immigration bill—for which GOP leaders are still trying to gather support—would mandate that families crossing the border illegally be detained together, a policy that could lead to children being kept in custody indefinitely as their parents await a hearing in badly backlogged immigration courts.
The bill text strongly resembles that of the hastily drafted executive order that Trump signed Wednesday that would mandate parents and their children be kept together in Homeland Security Department facilities. Speaker Paul Ryan said Wednesday that the bill would keep families together.
“We’re going to finance facilities for families to make sure they can be taken care of so we don’t have to have this ridiculous choice between enforcing the borders and enforcing our law. We think it’s a false choice,” he said. “The law should not have our government choose between … securing our borders and keeping families together. That’s a ridiculous choice.”
Yet the bill sets up another choice: Secure the border or detain children for extended periods, a choice some House Republican members are not happy to have to make.
“I am uncomfortable setting a precedent that we will arrest the child of the lawbreaker when we arrest the lawbreaker. That bothers me a lot,” Rep. Tom McClintock said. “If you pull over somebody for a DUI with a 3-year-old in the backseat, we don’t arrest the 3-year-old, we arrest the drunk driver and take the 3-year-old into protective custody and get them back to a relative. … We don’t arrest the child for the sins of the parent.”
McClintock said he supports the administration policy of separating children from the parents, and blamed the parents for putting their children in that situation. Among House Republicans, however, he is in the minority. As pictures and audio of crying children in cages made their way across TV screens and the internet, members spent the day agonizing over how to fix the issue.
Trump’s executive action instructs that the attorney general, “to the extent practicable, prioritize the adjudication of cases involving detained families,” yet the House bill, as written, contains no such clause. That could present an issue because, according to a Syracuse University database, immigration cases are taking a nationwide average of 715 days, or almost two years, to process—and as much as three years in states like Colorado and Illinois.
Rep. Carlos Curbelo said he would be in favor of including a similar provision in the House bill so that kids are not kept behind lock and key for years, but with the House planning to vote on the bill Thursday and members still digesting its specifics, such a late change may not be practical. He said the Senate will still have time to change the legislation if the House approves it.
“There’s no elegant solution,” Curbelo said. “No one wants the indefinite detention of children. We want children to be kept together with their parents while these proceedings are ongoing, and the goal is to expedite those proceedings as much as possible without violating due process.”
Rep. Peter King said leaders should consider adding provisions to the bill ensuring a specific process for how to handle the children, because otherwise members have to choose between detaining the children with the family, separating the kids, or letting the families go.
“If you just say you’re not going to detain the family, then you could just be encouraging this mass illegal immigration,” he said. “If it’s not in the bill it should be that the family would be detained together, but if there’s a relative of the kid, the kid could go [stay with them]. You’re not detaining the kid because the kid’s a threat, you’re detaining them to protect the kid.”
Rep. Chris Collins, on the other hand, said he would rather see that part left up to the discretion of the immigrant parents, detention officers, and judges.
“Let’s let the legal system, which has lots of discretion today, continue to have it. Because what’s the problem? When you try to mandate a one-size-fits-all, you end up in the mess we’re in today,” he said. “We’re not going to have kids in detention for 10 years.”
The bill does not specify how long kids can be held. Instead, it would replace a court ruling that mandates that children cannot be held for more than 20 days, a ruling that the Trump administration cited as justification for its policy of separating children from their parents. Because the ruling exists, Trump’s executive action is sure to face a legal challenge. Some members said that is exactly why Congress should also take up the issue.
Still, as leadership tried to push for a Thursday vote, others said the measure should perhaps be put off until another date. Republican Study Committee Chairman Mark Walker said members suggested in a Wednesday afternoon meeting that the vote be put off to give them more time to digest the bill and that he would broach the subject with leaders.
That could anger moderates, however. Rep. Jeff Denham said that any backtracking on the agreement to vote on both a conservative bill and their preferred compromise on the same day could spur him to act on a discharge petition that would force immigration votes.
“We had an initial agreement to bring up rule, rule, bill, bill so that you could not undermine the discharge petition,” he said. “But as I have spent a lot of time with the parliamentarian, we’ve got other options. We will continue to reserve those options depending on how this plays out. We are not going to let this go.”