Congress Paralyzed Over Trump’s Family-Separation Policy
Lawmakers could solve the horror show on the border by passing a one-sentence bill. Here’s why they have not.
Even as Republicans on Capitol Hill began speaking out on Thursday against a Trump administration policy of separating undocumented children from their adult family members at the U.S.-Mexico border, there was no consensus on a legislative response.
While Democrats were demanding a straightforward bill to put an end to the Justice Department’s family-separation directive, Republicans said the matter should be tucked in with broader changes to immigration policy. The result was inertia, with no side content with the status quo but, simultaneously, all sides unable to do anything about it.
Underscoring the legislative standstill was Rep. Mark Meadows (R-N.C.), the chairman of the influential House Freedom Caucus, who, when pressed as to why lawmakers wouldn’t pass a standalone bill outlawing the separation of children from their parents, said he was “hopeful that we can get all of these other [immigration policies] done, too.”
“But if not, obviously that becomes a plan C or D,” Meadows added, referring to a legislative measure that would simply repeal the policy. A House GOP source familiar with the matter said the White House explicitly asked the House to address the separation issue.
The reluctance to swiftly repeal the unpopular enforcement measure comes as the Trump administration continues to attract criticism for an immigration policy that critics have dubbed inhumane. Attorney General Jeff Sessions put the “zero tolerance” family-separation policy into place earlier this year, arguing that it would serve as a deterrent for illegal border crossings.
Immigration advocates and their allies on Capitol Hill have pointed to the policy as the catalyst for a series of heartbreaking stories that have been reported recently at detention centers. A 39-year-old Honduran man committed suicide in a cell after he was separated from his wife and 3-year-old son. Another woman said she was breastfeeding her daughter when the child was taken from her.
Pressure to address the matter has mounted over the past few weeks. And on Thursday, House Speaker Paul Ryan (R-WI) joined the chorus of lawmakers who voiced opposition to the Trump policy. “No, I’m not,” Ryan said when asked if he was comfortable with the directive. “We don’t want kids to be separated from their parents.”
But Ryan said he preferred to address the issue through a more comprehensive immigration package rather than as a stand-alone measure. The House is voting next week on two immigration bills, one of which includes language stating that minors accompanied by their parents “must not be separated from their parent or legal guardian while in [Department of Homeland Security] custody.”
Ryan argued that a “court ruling” is responsible for the policy—a likely reference to the 1997 Flores settlement, which bars the federal government from detaining undocumented immigrant children. The White House, which has said it wants the Flores settlement to be repealed, has also claimed that federal officials are compelled to pursue a separation policy based on pre-existing law, a stance it reiterated on Thursday. But there is no such legislation on the books, and the Flores case does not explicitly mandate family separations. Moreover, previous administrations did not interpret the case in that manner.
Absent President Donald Trump and Sessions reversing their positions, Congress would have to pass a law compelling them to do so. And on the Senate side, a legislative push is underway.
Senate Majority Whip John Cornyn (R-TX) plans to introduce legislation that would require families to be kept together while they await court proceedings in the United States. Cornyn’s office told The Daily Beast that the senator will amend a previous piece of legislation he co-authored, known as the HUMANE Act, which would expedite court rulings on whether unaccompanied minors could remain in the country.
“Sen. Cornyn plans to update the bill and reintroduce it to require that families be kept together while they are waiting for court proceedings,” a Cornyn spokesman said.
In the House, the legislative approach to the Justice Department’s separation policy is proving to be even broader. Lawmakers are intent on addressing the matter as part of more comprehensive immigration legislation that they are considering next week. But the two bills under consideration—which will touch on everything from the Deferred Action for Childhood Arrivals (DACA) program to legal migration and border security—stand little chance of passage. And even if one does make it through the House, Senate Republican leaders seem to have little appetite for another contentious battle on a topic that has vexed them for decades.
“We’ve got a very compressed schedule,” Cornyn told The Daily Beast earlier this week, casting doubt on the prospect of another immigration debate. “It’s going to be crowded.”
Faced with the likelihood of legislative paralysis on immigration, Democrats have demanded that Republicans narrow their ambitions and simply take up a bill that reverses the Trump policy.
“This could have been something taken up under suspension in a minute if there was a real sincere effort,” House Minority Leader Nancy Pelosi (D-CA) said on Thursday. “You don’t even need to do it. It’s executive action by the attorney general. It can be changed just like that. Just like that.”
On the other side of the Capitol, Sen. Dianne Feinstein (D-CA) has introduced a bill that would bar federal agents from taking children away from their parents after they cross the border. But a Feinstein aide said she has yet to find a Republican co-sponsor, though “not for a lack of trying.”
“They have the majority. If they want to solve it, they can solve it,” Sen. Kamala Harris (D-CA) said in an interview. “It’s not a credible argument to say we tried and we failed when you have the majority. If you really want to do it, you’ll get it done.”
A GOP aide told The Daily Beast that one reason for the legislative logjam was that the Trump administration was insisting that any legislative response address an accompanying issue of how children are processed through deportation proceedings. Under current law, minors can be separated from their parents but those from non-contiguous countries cannot be deported without a hearing. The president’s team has made it clear to Congress that they believe traffickers and drug dealers are using this as a loophole to get a foot into the country.
But there is no overwhelming political appetite for making it easier for children to simply be deported, too. GOP lawmakers acknowledged on Thursday that the path forward remains unclear.
“It’s heartbreaking to see kids being pulled away from their parents. And it just seems to me that there’s a better way of going about what we’re doing on the border,” Sen. Bob Corker (R-TN) said in an interview. “Families are families regardless of where they come from. We need to do a better job of dealing with it. I don’t know what that better way is.”
—Sam Stein contributed reporting.