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Congress’s chaotic scramble to address Trump’s family separation border policy, explained

The state of negotiations around family separations in Congress is a mess.

President Trump Addresses The House Republican Conference Meeting On Capitol Hill
Trump said Congress has to act on family separations. It’s been a mess.
Alex Wong/Getty Images

Congress seems to agree that the Trump administration’s “zero tolerance” policy that has separated more than 2,300 children from their families at the border is devastating, but no one knows exactly what to do about it.

So far, the Trump administration has been clear. “Congress alone can fix it,” Homeland Security Secretary Kirstjen Nielsen told reporters at a press conference about the family separation crisis Monday. But on Wednesday morning, President Trump said he would be “signing something” on immigration related to family separations. It’s not clear what that executive order would be — or whether it would even be legal.

As both Democrats and many Republicans have pointed out, Trump could call on his administration to reverse its “zero tolerance” policy.

“Mr. President, you alone can fix it,” Senate Minority Leader Chuck Schumer said Tuesday.

Trump continues to use the horrific policy to argue that the country’s immigration laws are broken and demand a comprehensive border security package from Congress. In a partly-televised meeting with lawmakers Wednesday, he appeared defend separating families as a way to be “tough” on the border.

“If you’re really pathetically weak the country is going to be overrun by millions of people, and if you’re strong then you don’t have any heart,” Trump said. “Perhaps I’d rather be strong.”

There are currently at least four standalone proposals in the Senate that aim to permanently stop family separations, as well as several other ideas to temporarily deal with the problem — but Trump doesn’t appear to support any of them. Meanwhile, House Republicans are going in a completely different direction, tacking a family separation provision to a likely politically doomed comprehensive immigration bill initially designed to address the Deferred Action for Childhood Arrivals program. Democrats, who have seen Trump torpedo several immigration deals, remain skeptical about coming to the table.

There’s no question that the political fallout from the Trump administration’s policy to separate children from their parents at the border is hanging heavy over Republican senators. But the urgency and political will on Capitol Hill to work out a bipartisan solution seems less potent.

“There are lots of compelling issues that need to be addressed — and this is one of them,” Sen. John Barrasso (R-WY) said Tuesday when asked if the situation on the border was an emergency.

There are several proposals in the works that would address family separation. No single proposal has enough support to pass.

Senate Democrats Introduce ‘Keep Families Together Act’ For Migrants
Sen. Dianne Feinstein (D-CA) presents her bill that aims to stop family separations at the southern border.
Mark Wilson/Getty Images

As child detentions and family separations become a national flashpoint, lawmakers are scrambling to find some kind of narrow fix for the border crisis. There are four Senate proposals in the works that would address family separation at the border:

The Keep Families Together Act. Sen. Dianne Feinstein (D-CA) has a proposal, which has the support of every single Senate Democrat, that would outlaw family separations except in very specific cases — when there’s reason to believe a child is being trafficked or abused by his or her parents. The bill would only allow a family to be separated if a state court terminated an unauthorized immigrant’s parental rights or an official from a state or county child welfare agency decided it was in the best interest of the child to be removed.

Republicans have already found issue with the proposal, calling it a return to “catch and release,” when a family seeking asylum is released from custody and told to return for a future court date. Sen. Tom Cotton (R-AR), one of the Senate’s furthest-right immigration hardliners, said there is consensus in the Republican Party that this is a “radical” proposal.

The Protect Kids and Parents Act. Sen. Ted Cruz (R-TX) has a proposal that has already earned a lot of support from his fellow Republicans. The bill would essentially create an expedited 14-day process for asylum cases and double the number of immigration judges on the border from 375 to 750. It would also authorize new temporary shelters that could accommodate families and mandate that unauthorized immigrant families be kept together, as long as there isn’t criminal conduct or threat to the children. Many have called his call for a fast asylum process unrealistic — and say it could result in more people being deported than granted asylum.

And Trump has already rejected the idea, mischaracterizing the proposal to increase border judges in a speech to small business owners. He instead reiterated support for the border wall.

“Ultimately, we have to have a real border, not judges,” Trump said. “Thousands and thousands of judges, they want to hire. Who are these people?”

Majority Whip John Cornyn (R-TX) also has a working group. A group of Republican senators led by Cornyn, the No. 2 Senate Republican, are also working to draft legislation that would address family separations. While it’s not entirely clear what this proposal would include, Cornyn in the past has said he is looking to revive his 2014 Helping Unaccompanied Minors and Alleviating National Emergency (HUMANE) Act, which would require a judge to rule on a migrant child’s case within 72 hours.

Others in his working group, like Cotton, have called for Congress to overrule the Flores settlement, a court ruling that puts strict limitations on how the government can detain children, requiring that kids be released “without unnecessary delay” and that they are kept in the “least restrictive” conditions possible. Courts have also determined that Immigration and Customs Enforcement can’t detain families for more than 20 days in most cases. In all, the group is still talking through ideas.

Sen. Thom Tillis (R-NC) also has a proposal that looks a lot like Cruz’s, approving more border judges and detention space, but would also pull language from Feinstein’s proposal around the protections for children against traffickers. Sen. Jeff Flake (R-AZ) reportedly supports this bill.

Flake told Vox Tuesday that Republican senators are also discussing alternatives to family detention, like ankle bracelets, to mitigate concerns about “catch and release.”

Meanwhile, in the House, Republicans have added a provision to address family separation in a comprehensive immigration bill that would give legal status to the young unauthorized immigrants known as DREAMers, fund the southern border wall, and make serious cuts to legal immigration. At this point, the immigration bill still doesn’t have enough support among Republicans to pass the House, let alone receive the bipartisan backing it would need to get through the Senate.

Trump could also call for this to end. But he’s just complicating things.

President Trump Addresses The House Republican Conference Meeting On Capitol Hill
President Donald Trump said he will sign something on immigration on Wednesday.
Alex Wroblewski/Getty Images

Democrats had one message on Tuesday: President Trump created the family separation crisis, and he’s the only one who can reverse the decision.

“The president alone can fix it with this flick of a pen,” Schumer said, brandishing a pen for full effect, “by signing a presidential order to end the agonizing screams of small children who have been separated from their parents.”

Some Republicans agree. Sen. Orrin Hatch (R-UT) sent the Department of Justice a letter on Tuesday with the signatures of 11 other Republican senators, calling for the administration to temporarily halt its family separation policy until Congress can find a legislative fix.

“We support the administration’s efforts to enforce our immigration laws, but we cannot support implementation of a policy that results in the categorical forced separation of minor children from their parents,” the senators wrote.

Until now, the White House has taken completely the opposite tack by trying to punt a fix for the family separation crisis it created to Congress. But on Wednesday, the Department of Homeland Security said it is working on an executive order to address family separation. It’s still not clear whether the order would simply halt the practice or try to overrule the Flores settlement — something that would be subject to legal challenges in court. Trump has indicated he plans to sign an executive order related to family separation policy.

But the administration is still arguing that Congress needs to do something about the nation’s immigration laws.

“Congress and the courts created this problem, and Congress alone can fix it,” Homeland Security Secretary Nielsen said at a Monday press conference. Trump has already signaled he’s not open to even narrow family separation fixes being proffered by members of his own party.

He seemingly shrugged off Cruz’s bill proposal during a Tuesday meeting with lawmakers, even as many of Cruz’s Senate colleagues seemingly rallied around the idea. As Vox’s Dylan Scott wrote, the president “laughed off the idea of expanding the immigration courts as part of a plan to end the crisis,” and made it clear he just wants enhanced border security and law enforcement.

“We have to have a real border, not judges,” Trump said. “I don’t want to try people. I don’t want people coming in.”

Trump has a history of blowing things up, looking to Congress for a fix, and then complicating the legislative process. Last year, he announced he would end the Deferred Action for Childhood Arrivals program, a decision that has left the legal status of 700,000 immigrants in limbo as the order remains held up in courts. Indeed, the House was still working on a fix for that situation when Trump put a new immigration crisis on their plate.

Congress, despite nearly nine months of negotiations, has failed to produce a result — a lack of consensus that can be attributed in part to Trump’s unwillingness to step away from his hardline immigration views.

As the Senate looks toward a narrow fix on family separations, it’s still not clear how a partisan and comprehensive House bill could land on the president’s desk.

This is already looking like a partisan fight

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Senate Minority Leader Chuck Schumer does not appear ready to negotiate immigration with Republicans again.
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Senate Republican leaders said they would like to address family separations soon — even in a “matter of days,” Cornyn said Tuesday.

But already, they appear to be preparing for a partisan fight, looking to blame Democrats for being unwilling to compromise.

“I hope people don’t try and play partisan games on something that’s a very serious issue,” Sen. Cory Gardner (R-CO), said Tuesday, referring to his Democratic colleagues. Several GOP senators echoed the sentiment.

On Monday, all 49 Senate Democrats rallied around a legislative fix to family separation — the Feinstein bill. But just a day later, Schumer’s message was that a Republican-led legislative fix should the be the option of last resort.

“Let’s hope we never get to that. Let’s hope the president does the right thing and solves the problem, which he can do,” Schumer said. “That’s the simple, easiest, and most likely way this will pass.”

He continued to point out the political difficulties of finding an immigration compromise in Congress.

“There are so many obstacles to legislation, and when the president can do it with his own pen, it makes no sense,” Schumer told reporters. “Legislation is not the way to go here when it’s so easy for the president to sign it.”

With Democrats outwardly refusing to negotiate with Republicans on a narrow legislative fix for family separations — insisting that the buck stops with Trump, not Congress — there’s a growing possibility that the family separation issue will play out in Congress in another bitterly partisan and fruitless fight.

“What I worry about right now is there being a Democratic bill and a Republican bill, and both sides saying they have a solution but no real solution,” Sen. Bob Corker (R-TN) told reporters on Tuesday.