Trump’s executive order clears the way for DHS to detain families together
Here’s what the executive order actually does.

Allows people to be prosecuted for illegal entry without being sent into the custody of the Department of Justice — thus allowing parents to be kept with their children. The order directs the Department of Homeland Security to keep families in its custody until both the criminal case against the parent and the immigration case against the family are completed. When a family is seeking asylum, that can take weeks or months.

The Trump administration directs the Department of Justice (which runs immigration courts) to prioritize the immigration cases of detained families — which raises concerns about due process (given the last time that families were detained in an expedited process). The directive will also result in other immigration cases being pushed back even further in the backlogged immigration courts.

Uses other departments — including the military — to house migrant families if needed. Immigration and Customs Enforcement doesn’t even have room for all the adults it’s keeping in detention — which is why it had to send 1,600 detainees to federal prisons two weeks ago. Now it’s being told to detain thousands of children as well. To accommodate this, the Trump executive order allows the military and other departments to provide space and facilities if needed for migrant families.

Tells Attorney General Jeff Sessions to ask the courts to change their mind and declare family detention to be legal. The Flores settlement, as it was interpreted by courts under President Obama, prevents the federal government from keeping children in immigration detention for longer than necessary — and that applies to children who are being kept with their parents as well as those who come to the US without adults. Under Obama, the courts ruled that 20 days was about the limit of how long “reasonable” would be — but any asylum proceeding that takes 20 days or less is going to be legally suspect from a due process perspective.

So it’s very likely that this executive order will lead the government to violate the Flores settlement as it stands now. Trump’s solution is to tell Sessions to ask the federal courts to amend the settlement to allow him to detain families together as long as needed.