Fenster writes:

The mainstream (i.e., anti-Trump) position on family separation is at least as disingenuous that of the Administration.  Much of the grandstanding in Congress relates to whether Trump can stop separation “with a phone call”.  Further, the mainstream press supports that view, arguing that the Flores consent agreement does not “require separation” and that Trump can stop the process on his own. That is true but misleading.

When someone is detained for federal criminal proceedings they are given over to US Marshalls.  It is never the case that children are permitted to accompany parents who are so accused. So the initial separation arises inevitably (in the case of illegal border crossings) from the decision to prosecute entry at the border rather than waving people through.

Most often the proceedings are quick and if the accused is found guilty of entering on an unauthorized basis they are sentenced to time served, generally days, are reunited quickly with family, and all are deported.  If all that can be done in under 20 days the Flores tripwire (no detention of children after 20 days) is not triggered.  But during that period of up to 20 days separation is unavoidable once the approach taken is the swift resolution of the legal matter.

But let’s say someone who is caught entering illegally not at a border crossing asks for asylum after being caught. Perhaps they ought to have presented themselves at the border (or to Mexican authorities, or to an American embassy–these are for the moment but trifling points).  But they are free to assert a claim for asylum even if they are brought in by traffickers not at a border crossing and subsequently apprehended. Such individuals may still have the charge of illegal entry to deal with but the asylum process beyond that can take a longer time.

Alas, under a 9th Circuit ruling dealing with Flores handed down a few years ago children cannot be detained for more than 20 days even if they are with their parents. So the government is prohibited from moving the asylum seeker to detention with their children awaiting an asylum hearing; even that situation is not permitted under Flores.

It is for this reason that the Administration favors a quick law change that would get rid of Flores restrictions on length of stay and permit families to be together. Who could oppose that?

Well, the Dems appear to be opposed, arguing that Trump doesn’t need the legislation.  Since Flores does not “require separation” the argument is that he can reunite families without a law change, with a phone call.

Sure but it appears that the only way to do that would be to just let the families go entirely. If it is objectionable to separate a child from a parent who crossed illegally, even for a matter of days, they can always be released, right?  Same with asylum seekers.

It sounds easy enough but I do not see any way the Administration’s approach to prosecution and asylum can be easily squared with keeping families together.

Now, there are of course different views on the wisdom of the Trump approach to the border. Migrants, their advocates and large chunks of the liberal electorate are fine with catch and release. They want the migrants in the country. If you like more immigration you will presumably like releasing families whether or not they have requested asylum.  Better to finesse the law than insist on its enforcement.

It is OK to have that opinion, but it is quite a different thing from saying Trump is free to end the separation policy with a phone call–not if he wishes to continue his current approach to entry and asylum.

That is the disingenuous part—what is not stated by the Dems is that in order for him to end separation without a change to Flores he would have to drop the current approach to the border, and revert to the prior practice of waving families through.

Why is this aspect not highlighted by Trump’s opponents?  The Dems know that the American public does not like family separation but they also know that the public does not favor the lax approach elites have taken to the border in the past, and just do not understand why someone who walks across the border should not simply be denied entry.

Is there a good case to be made by Dems for ignoring the law and letting people through given the complex nest of restrictions and laws in place at the time of entry? Something that will resonate with the public?  I doubt it.

Meanwhile Trump’s polling continues to improve.