On Friday, September 7, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) published a federal register notice that proposes, through the regulation process, to amend a court agreement relating to the apprehension, processing, care, custody, and release of children detained at the U.S. border. The notice, Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, seeks to overturn a court agreement, Flores v. Reno, referred to as the “Flores Agreement.”

The proposed regulation is an attempt to change the federal government responsibilities under the 1997 Flores consent decree which has been enforced through federal courts, most recently in July of this year. According to Secretary of Homeland Security, Kristjen Nielsen, “Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country. This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.”

In July U.S. District Court Judge Dolly Gee rejected the Trump Administration’s request to overturn the 1997 Flores agreement that restricts child detentions to no more than 20 days. The Judge was highly critical of the Administration and Congress calling the Administration effort to overturn Flores “a cynical attempt” to shift responsibility to the Judiciary for “over 20 years of Congressional inaction and ill-considered executive action that have led to the current stalemate.” Congress has tried to preempt the Flores agreement through the appropriations process in the House but has been unsuccessful so far.

There are many who question whether the Administration can revise this policy by simply asking for 60 days of comments on how it would change these protections. In an ominous sign for the Administration Senator Roy Blunt (R-MO) was quoted as saying that as Chairman of the Senate Labor-HHS-Education panel, he plans to speak with HHS Secretary Alex Azar on Friday [last] about the legality of the move, “I’m not a lawyer, but I can’t quite figure out how, by executive order, you get around the Flores decision.”

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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