Brine Gildchaff Profile picture
Jun 21, 2018 28 tweets 6 min read Twitter logo Read on Twitter
So I'm seeing a lot of folks bringing up Clinton and Obama with respect to Trump's latest #ExecutiveOrder. Setting aside the fact that doing so is blatant whataboutism, I want to talk about these assertions, because a lot of them are misconceptions.
First off - I see a lot of talk about how this is actually just enforcement of a law that Clinton signed in 1997. That is untrue on every front (except the year, I guess).
1997 refers to the settlement in the case Flores v. Reno. The settlement to this case established a number of conditions which the government was ordered to adhere to when detaining minors who had entered illegally.
Right off the bat - a COURT DECISION, not a LAW. So Congress as a whole (and "the Democrats" as I've seen asserted several times) had nothing to do with it.
Now. Chief among the conditions of the Flores settlement was this: if the United States detained a minor for unlawful entry, they could not detain them for more than twenty days, after which they were required by court order to remand them to a family member, sponsor, or agency.
Effectively: this means that after twenty days, the government had to let the child out of detainment and send them to be housed by a family member who was already living in the country or someone who had agreed to sponsor (read: care for and watch) the child.
Nowhere does this say the child had to be separated from their parents. In fact, Flores' entire goal was to be reunited with her family - she had an aunt living in the US and sued the government for an injunction declaring that she was to be remanded to that aunt's care.
Another thing that's worth noting - Flores was an -unaccompanied- minor, and for over a decade that's what the Flores settlement was viewed as covering.
Enter the next big assertion re: Democrats and family separation, the Obama administration. In 2014, the administration began the policy of detaining entire migrant families, TOGETHER, and expediting their immigration court hearings.
Yep. Saint Obama did that. Deportations rose -precipitously- during the last few years of Obama's second term, actually - despite assertions otherwise he was quite aggressive on immigration, and even referred to this policy as a form of "deterrence".
(This is, most likely, where people found that 2014 quote attributed to HRC, though it may also have been a reference to a perceived abuse of DACA.)
And... actually those of us who knew about that situation didn't like it one bit. I know this is hard to believe, but liberals don't kiss the ground Obama walked on and support absolutely every act he took as President! (see also: the fucking drone strikes, holy yikes)
In fact, a group of liberal activists you -might- have heard of sued the Obama administration multiple times in 2014 and 2015. They're called the ACLU.
The outcome of these cases? The 9th Circuit Court (why does that sound familiar...) ruled that the Flores settlement applied to accompanied minors as well - regardless of who brought them here, minors could not be held for more than 20 days.
I've seen it asserted several times that the administration's response was to separate children from parents - but that simply isn't true. Instead, the response was to detain the family for 20 days, then release them with a court date - what conservatives call "catch & release".
(Incidentally, another bit of misinformation - nearly 2/3 of immigrants released under this system report for their court date, and over 90% of those with a lawyer assigned do - many because they do not understand the English-language order or fail to receive their notice.)
So. There was no 1997 law (it was a court order held to only oversee unaccompanied minors until 2014/5). The Obama administration never enacted such a policy - it held families TOGETHER until ordered by the Ninth Circuit to stop.
The facilities being neglectful or outright abusive, I will not challenge - only say that it was wrong then, and it is wrong now. Thankfully one of the few good things that the new EO does is direct the building of new facilities - we really needed more considering backlog.
So why is all of this onus on Trump? Because of the policy his administration DID enact: to criminally prosecute any adult crossing the border illegally.
And that really IS his policy, not anyone else's. The standing policy was instead to detain families and fast-track them through immigration courts so they could be speedily deported (or have their temporary residence approved).
And yes, that really is policy - prosecutorial discretion is a thing, no matter how sick I'm sure a lot of you are of hearing about it, and policy up until May 2018 was to use that discretion to forego criminal charges vs. first-time offenders to speed up deportation.
So yes. Trump administration policy of prosecuting everyone - forcing the parents to be placed into DOJ custody and the children in DHS detainment, instead of detaining everyone together to await an asylum hearing or immigration court date - is what caused this situation.
Now. The #ExecutiveOrder does nip some of this - it says that parents are to be kept by DHS instead, and housed with their children. Unfortunately, it's full of loopholes that will allow the administration to justify many more separations.
... and, as many have said, this #ExecutiveOrder does nothing to address the current 2300 detained children who were separated, by Trump administration policy, from their parents. It doesn't say that those parents should be remanded back to DHS and their children returned.
And, most worrying of all - the #ExecutiveOrder has directed Sessions to go to court and actively try to overturn the Flores settlement.
So what's the score here? We have an #ExecutiveOrder that opens by blaming Congress for the effects of a policy that the Trump administration enacted, based on a COURT ORDER from 1997 and Congress' dismal failure to... enact the policies Trump has been ordering them to enact.
And we have supporters of the administration who incorrectly assert that Obama had the same policy (in fact he had the opposite policy both before and after the 2014/5 ACLU cases) and that it's required by a 1997 law that doesn't actually exist because it's just Flores v. Reno.
I'm sorry, but none of this is true. No matter how much Trump might want to continue his habit of #gaslighting the country, a policy enacted by the Trump DOJ of making criminal prosecution of every adult that crosses the border is not the fault of the minority party.

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