Quick Thoughts On The President’s Executive Order To Avoid Immigrant Family Separations.

Under intense criticism for his policy separating thousands of immigrant children from their families, President Trump signed an Executive Order trying to stifle the blowback. The EO appears to provide no relief for those children already detained. However, it would stop the process of family separations, but only if a judge agrees.

The EO provides for indefinite detainment of families together in defiance of an existing court order. Recognizing that, it directs the Attorney General to promptly file a motion seeking modification of the court order.

I’m not sure how the court will look at this, but there’s some real negatives for the administration.

First, the government will argue the well publicized crises is the basis for the order. Representatives for the children will counter the “crises” was created by the administration itself and that it should not be rewarded with a more government friendly modification for doing that.

Further, the usual course, when seeking modification of an order, is to seek the modification before engaging in the prohibited conduct. You don’t defy the court order and then seek modification. Representatives for the kids will argue that had the government done this right, with proper notice and deliberation before hand, a rushed decision would not be required.

Finally, the court will feel like letting the government do this is accepting a pig-in-a-poke. There is nothing in the EO even hinting on what conditions the children will be kept in. A court will have a hard time granting the government a blank check in that regard.

It should be noted that as recently as last Friday Trump stated that “You can’t do it through an executive order.” That he then tried to do that by EO is a point opposing counsel will undoubtedly bring to the judge’s attention as well as they argue Trump knew he couldn’t do this, was setting this motion up to fail, and then blame the courts for separating children.

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