Just the Legal Guts of Family Separation Policy

Southern Immigration: A 30,000 Foot Overview

  • 1965 The U.S closes border with Mexico for the First Time.
  • In 1983, US Supreme Court forbids schools turning away Illegal Immigrant children.
  • in 1986, The Immigration Reform and Control Act deferred deporting minors.
  • Between 1990 and 2000, immigration backlogs grew by 1,000 %
  • 1997-2007, Public School ELL(English) support jumped 53%
  • In 2014, Border Patrol Apprehended 68,000 unaccompanied minors at the Border.


The Child Separation Policy in the United States has some weird legal framework around it. The most basic and undermentioned is the Flores Settlement.  In 1985, a 15 year old girl was kept in a detention facility, was strip searched a few times and the U.S. government got sued. Guess who wrote the Supreme Court Decision stating that illegal immigrants have literally no right to be united with anyone, family or not? That reuniting non-citizens with anyone is essentially a charity of the U.S. government? Here is a hint:

Antonin Scalia

In 1998, Bill Clinton passed what is known as ‘the Flores Settlement” where it states that while kids will be released without unreasonable delay to family, relatives, or a government entity(such as foster care), the Gov’t can instead opt to keep the kid in custody(detention) for the well being of the child(say, when the parent is going through deportation or other criminal proceedings) or when they need to secure the appearance of the minor before a judicial hearing. In custody, kids are going to get a pretty subsistence level of living situations. Food, shelter, a little privacy, not a lot else.

For context on family unification, the recent Trump v Washington case mentions the following; the case Kerry V Din 2015. Basically in 2000, a woman, Fauzia Din applied to become a U.S. citizen. In 2006 she got married. She received citizenship in 2007. She then applied to have her husband join her. Problem: Her husband had a resume that included ‘The Taliban.’ When his entry was denied she sued because she had a “constitutional right to live in the United States with her spouse[family].”

There was just one problem:

Hi, I’m here to annoy liberals.

Scalia claimed that there is no constitutional right for one to live with one’s spouse(Imagine how messy divorce law could be if a husband could claim the legal right to live with his wife). The next case is Fiallo v Bell(1977). In this case, the court ruled that immigration law was totally allowed to favor single moms with their children but not single dads with their children in the process of granting citizenship. Perhaps most importantly: The Court ruled that Congress has Absolute Authority with Regards to immigration.

“over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.”

Under another case, the also cited Kleindienst v Mandel(1972) decision(a commie was banned from America and sued), the Executive Branch and specifically the Attorney General was given a very similar level of broad reach So if Jeff Sessions can make a law, it can be enforced.


History Check:

With the idea of quotas in general there is no quarrel. Some numerical limitation must be set, so that immigration will be within our capacity to absorb. But the overall limitation of numbers imposed by the national origins quota system* is too small for our needs today, and the country by country limitations create a pattern that is insulting to large numbers of our finest citizens, irritating to our allies abroad, and foreign to our purposes and ideals.

The overall quota limitation, under the law of 1924, restricted annual immigration to approximately 150,000. This was about one-seventh of one percent of our total population in 1920. Taking into account the growth in population since 1920, the law now allows us but one-tenth of one percent of our total population. And since the largest national quotas are only partly used, the number actually coming in has been in the neighborhood of one-fifteenth of one percent. This is far less than we must have in the years ahead to keep up with the growing needs of the Nation for manpower to maintain the strength and vigor of our economy.

In vetoing the 1952 Immigration Nationality Act, President Truman (D) said this. He was overruled and fellow Democrat Pat McCarran used this phrase:

“Today, as never before, untold millions are storming our gates for admission and those gates are cracking under the strain. The solution of the problems of Europe and Asia will not come through a transplanting of those problems en masse to the United States. … I do not intend to become prophetic, but if the enemies of this legislation succeed in riddling it to pieces, or in amending it beyond recognition, they will have contributed more to promote this nation’s downfall than any other group since we achieved our independence as a nation.”

Notice how everyone talks about the wellbeing of our Nation and employment needs. The idea of the wellbeing of the immigrant never factored into immigration law or the arguments for it.

The 1924 Law Truman references is the National Origins Quota Act. It advanced previous legislation aimed at keeping Asians out of America, and basically did so using a *Nation by Nation Quota system that worked like this:

The law looks at how many people from each country lived here in 1890, and said that no more than 2% of that number was allowed in per year. So if we had 100 Japanese people here in 1890, only 2 per year would be allowed in during 1925, but if we had 1000 English people here in 1890, 20 per year could arrive in 1925. It basically set the National Origin of the states to be completely static for about 40 years and the annual immigration numbers went from 350,000 to about 170,000 huddled masses per year.

Funny enough, in 1924 South American and Central America were considered ‘The Americas’ and counted as white and unrestricted. If you look at the FBI 10 Most Wanted you will see that a lot of hispanic origin males are still listed as racially white. People south of the Rio Grande didn’t really have any work restrictions and could still come and go as they pleased until the 1960s.


The Immigration Nationality Act of 1965 eliminated ‘by nation’ quota, but now everyone from all foreign countries had a single pool to come in on. This meant that our Southern Border suddenly closed and people had to do paperwork to get in. Or they could, you know, sneak in.  As part of the law, it set up ways to prevent the eugenically motivated 1924 law, and for this reason was used as the basis for the challenge to Trump Executive Order 13769, you know, the ‘Muslim Ban’. But remember, as the Supreme Court said, Congress and the Executive branch can basically pass whatever law they want on immigration.  So look at this chart.

I’m skipping the Immigration Reform and Control Act(RCA) 1986 of Ronald Reagan because literally everyone talks about that. It is only relevant to our discussion in that it allowed any minor in the country to stay as long as their parents began to apply for legalization.

The 1996 Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIA) were a huge boost for deportations because they allowed for expedited removal of any illegal migrants without documents or documents officials suspect to be fraudulent and add a lot of crimes to ‘aggravated felonies’ which are grounds for expedited removal. These are cited as having a chilling effect on illegal immigration. From 1997 to 2007, ELL students grew by a factor of 5 while migration stayed static.

In 2005 Operation Streamline began automatically charging all migrants caught crossing the border with Illegal Entry. In 2007 McCain and Kennedy passed Comprehensive Immigration Reform, the Senate denied granting legal status to DREAMers, and Arizona starts requiring all state employers to use e-verify.

In 2008 Obama starts his pogrom on illegal immigration with a plan to make targeting the hirer of illegals a priority and bars companies that hire illegals from gaining federal contracts.

In 2013, in a Memo, the Bipartisan Framework for Immigration Reform stated that children did not knowingly break the law and will be treated differently than adults.

In 2014, to deal with the massive flow of Central American Refugee Crisis minors across the borders, President Obama enacted a massive expansion in our child detention facilities re-opening three detention facilities and planning to build a fourth. Which brings us back to Reno v. Flores.

AG Sessions states, “If you don’t want your child to be separated, then don’t bring them across the border illegally.”

With a zero tolerance approach to immigration, it makes sense that any relative in the states who gets their child relative is going to be less than reticent to bring them to a deportation hearing.  It’s basically just doing this:

Elian Gonzalez at age 7 in 2000

(Janet Reno really plays a huge role in child separation). As part of an international custody battle, Gonzalez was returned to his father in Cuba.

One reason we have separate facilities for children and adults is probably due to how families cost almost three times as much to house than just keeping people in general detention facilities. It took way longer than I thought to dig up numbers or even any sort of criticism of the Obama era Central American Refugee Crisis, but Detention Watch has a listed population in 2012 of 478,000 migrants with plans to build larger establishments. The current amount of migrants in detention is less than 320,000, with an additional 44,000 asylum seekers.


The deadline set by the Justice Department to reunite the last few children with parents was July 10, and for an update on the problems they are facing read this. Or just know the people left are those awaiting DNA tests, criminal proceedings, and other complicated legal business that is absolutely listed as reasons to keep the children separate under Flores. There are a total of about 3,000 kids left to sort out.

To finish, look how many illegal migrant children we deal with accompanied and unaccompanied per year. This is a huge problem with numbers in the 10s of thousands per year.

Just Yesterday, a friend on my facebooks posted this hot garbage:


It outlines how a Marine Corps General became head of the INS in 1972. It explains how he saw how a wall did not work in Vietnam, and then outlines how at the time Mexican immigration was low, and how it has since skyrocketed.

Applying this to our understanding of legal framework, we can listen to Mr. Gladwell, and kindly ask if it it fair to criticize the INS lack of border security when we only legalized any border enforcement 7 years prior. Furthermore, can you really blame border legislation ‘over the 20th centure’ when you are only talking about 1965 onward?

In conclusion, the Child Separation issue has been in question since 1965, became legally controlled in the 1990s, and was essentially became an issue in 2014 with the Central American Refugee Crisis, in 2016 we had on average 4,000 unaccompanied minors per month being apprehended at the border, and since Trump assumed office that number has dropped by 75%. As of this morning, July 17, 2018 the Justice Department is working on children ages 5-17 reuniting with their families, having completed the process for all children under 5.