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Photo: Customs and Border Protection

The Trump administration has an exciting new plan to free itself from the oppressive hand of judicial oversight: All it has to do is write some new regulations and then it can detain entire migrant families forever! But wait, you might say, doesn't that Flores settlement say migrant children can only be held by ICE 20 days, and then they have to be released to family members or a sponsor? Well, sure it does, but there's a beautiful catch that might allow the New Cruelty to do whatever Stephen Miller wants, just maybe. After all, being in power means you can never be held responsible, doesn't it?


The Center for Investigative Reporting has all the details in a report published last week. As always with the Trump administration and immigration, there are plenty of devils in those details, and as we often say, go read the whole thing. But the skinny is that the Department of Homeland Security, which handles immigrant detention, and the Department of Health and Human Services, which handles the care of migrant children once ICE has to release them, have submitted a pair of proposed regulations that would formally replace Flores. Here's the key rationale, from an abstract of the DHS's proposal to replace the 1997 Flores Settlement Agreement (FSA) with some nifty new rules:

The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty-five days after publication of regulations implementing the agreement.

Basically, the administration is proposing to use the federal rule-making process to end the Flores settlement by supposedly enshrining the ruling in law. Ah, but here's where the beautiful catch is: The rules the feds want to put in place may actually gut the protections for migrant children and families that are currently safeguarded by Flores and by US District Judge Dolly Gee, who's in charge of overseeing the agreement. Yep, it's good old regulatory ratfucking in the finest Stephen Miller tradition.

The abstract insists this is all for the better, because the proposed rules would "codify the substantive terms of" Flores, and save taxpayers money by enabling

the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, ICE will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA.

Translation: No more nosy federal judge telling the administration how detained kids have to be treated. Advocates for migrant families held a presser last Friday to warn the new rules could simply toss out many of the protections currently in place:

"The administration is planning its next step, which we believe will result in even more suffering and trauma for children," said Ai-jen Poo, a leader of the Families Belong Together Coalition. "By dismantling long-standing child protection under the Flores settlement agreement and implementing regulations in its place, the Trump administration is seeking to expand its power to jail families for longer in worse conditions and lock children indefinitely."

The rules haven't been formally submitted in the Federal Register yet, but that's expected to happen soon since the Office of Management and Budget recently completed its review of the regulations. Once they're published, there will be a public comment period, after which the government will ignore public input and finalize the rules however it damn well pleases. Then the lawsuits would begin.

So what the hell do DHS and HHS want to do, free of judicial interference? A draft of the proposed rule was leaked to the Washington Post in May, and it was a doozy. Among other things, the draft would allow detention of families until their cases are resolved in immigration court and allow the government to more quickly deport unaccompanied minor children by redefining "unaccompanied," a clever technicality that would leave language protecting unaccompanied kids in place but vastly reduce the number of kids who could benefit from those protections. Hell, it could even allow HHS facilities to feed kids less by redefining "emergency" exceptions to Flores's guidelines.

Diane Eikenberry, of the National Immigrant Justice Center, said in May, "They want more power to punish children and their families for seeking safety in the U.S." Well of course! If migrant families aren't treated like shit, people might still want to come here.

And let's not forget: This is all happening a month after the government blew right past another court's deadline to reunite over 500 children imprisoned during the horror of "zero tolerance" with their parents.

Flores is still a very active impediment to the Trump agenda of Deporting Everyone Including Maybe YOU. At the end of July, Judge Gee ruled the feds had violated the settlement by medicating migrant kids at the Shiloh Treatment Center in Manvel, Texas, without parental consent. Gee ordered the kids to be moved to less restrictive facilities and ordered significant changes in how medications were administered. As a preview of what the government might get away with if Flores is undone, the Center for Investigative Reporting published an update to the story yesterday, and it's pretty ugly: Court documents show kids are still being housed at Shiloh, and still being medicated without parental consent. A physician hired by the plaintiffs' attorneys, Dr. Amy Cohen, was at least allowed to visit, but Jesus Christ, just look at her assessment:

Cohen concluded that their treatment "continues to fall far short of both accepted mental health care standards and the 'risk of harm' and informed consent standards set out in the Court's order of July 30."

So that's the Trump administration's behavior with Flores in place. Just think what the bastards would try to get away with if they can junk it.

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[Reveal / WaPo / Reveal]

Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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