Trump’s administration keeps changing its excuse for separating families

The Trump administration can’t settle on an explanation for its practice of separating families at the border. It’s not a policy, Homeland Security Secretary Kirstjen Nielsen said. It’s intended to deter illegal immigration, Chief of Staff John Kelly said. It’s the Democrats’ fault, President Trump said, repeatedly.

Bloomberg’s Sahil Kapur summed it up succinctly in a tweet on Monday:

Democrats and prominent Republicans have criticized the Trump administration and urged it to end the practice — which it has the power to do immediately. The family separations are the consequence of the Trump administration’s recent “zero tolerance” border policy, in which all people crossing the US-Mexico border illegally, even those seeking asylum, face criminal prosecution. This has led to the forced separation of families, with about 65 kids being split from their parents each day for the past six weeks.

But with few exceptions, the administration has avoided taking ownership of a crisis of their making. Here are the shifting and often untrue explanations they’ve given for why the family separation policy exists.

“If the Democrats would sit down instead of obstructing, we could have something very quickly,” Trump told reporters at a press conference Monday.

It echoed his Twitter rants on Monday (“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda”) and Tuesday (“Democrats are the problem”).

Trump reiterated his attacks against Democrats in a speech for the National Federation of Independent Businesses, where he was supposed to be talking about small business but instead just riffed on immigration.

“Child smugglers, who are very sophisticated, they have learned the loopholes in this horrible, rotten system that the Democrats have to help us fix,” Trump said. “Because we need the votes. We’d have the Republican votes 100 percent, we still don’t have enough votes. People don’t understand that.”

There is no law requiring family separation; this is a decision that the Trump administration has made. As for the “loopholes” in the law, Trump is likely referring to other protections, which came from bipartisan legislation, as Vox’s Dara Lind has explained:

Other administration officials back up Trump by pointing to the laws that give extra protections to families, unaccompanied children, and asylum seekers. The administration has been asking Congress to change these laws since it came into office, and has blamed them for stopping Trump from securing the border the way he’d like. (Those aren’t “Democratic laws” either; the law addressing unaccompanied children was passed overwhelmingly in 2008 and signed by George W. Bush, while the restriction on detaining families is a result of federal litigation.)

Right now Democrats are, of course, in the minority. Democratic senators have all gotten behind the Keep Families Together Act, which would stop family separations. No Republicans have supported the bill yet, though Sen. Ted Cruz (R-TX) is reportedly introducing emergency legislation to stop family separation.

“I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border,” Attorney General Jeff Sessions said in a speech on May 7. “If you cross this border unlawfully, then we will prosecute you. It’s that simple.”

Sessions, facing criticism for a policy that split families apart, fought back by citing a referencing Romans 13, a fraught passage from the Bible that had been used to defend slavery.

“Persons who violate the law of our nation are subject to prosecution,” Sessions said in a speech to law enforcement officers last Thursday. “I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order. Orderly and lawful processes are good in themselves and protect the weak and lawful.”

Miller has helped drive the administration’s hardline stance on immigration, and according to the New York Times, he never gave up the dream of separating families to crack down on illegal immigration — even as the rest of the administration backed away from the idea last year.

“No nation can have the policy that whole classes of people are immune from immigration law or enforcement,” Miller told the New York Times in a recent interview. “It was a simple decision by the administration to have a zero tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.”

Kelly was homeland security secretary when he first floated the possibility of separating families at the border. “Yes I’m considering [separating children from their parents], in order to deter more movement along this terribly dangerous network,” Kelly told CNN in March 2017, referencing smuggling networks. “I am considering exactly that. They will be well cared for as we deal with their parents. ... It’s more important to me, Wolf, to try to keep people off of this awful network.”

The Trump administration didn’t pursue the policy at that time, but Kelly’s statements prove the White House had been considering it for some time, and that its aim was to stop families from making the journey to the border in the first place.

Kelly hasn’t abandoned his view that separating families at the border is essentially a policy of deterrence.

“They’re coming here for a reason,” Kelly said of the migrants seeking help at the US border, in an interview with NPR in May. “And I sympathize with the reason. But the laws are the laws. But a big name of the game is deterrence.”

Kirstjen Nielsen has offered multiple excuses for the administration’s policy. On Sunday, she went on Twitter to claim that this wasn’t actually a “policy” — and chastised the media for false reporting.

As Vox’s Dara Lind noted, this is true in “the narrowest and most pedantic way” possible. The policy calls for referring anyone who crosses the border illegally for criminal prosecution — which results in the separation of families because children can’t accompany their parents to jail.

At a White House press briefing on Monday, Nielsen reiterated her defense of the administration’s actions, saying it was merely enforcing the law and that it’s up to Congress to do something.

“Congress and the courts created this problem, and Congress alone can fix it,” Nielsen said. “Until then, we will enforce every law we have on the books to defend the sovereignty and security of the United States. Those who criticize the enforcement of our laws have offered only one countermeasure: open borders.”

When asked if the “zero tolerance” policy was intended to separate families, possibly as a deterrent — as her former boss Kelly had suggested — Nielsen responded angrily that she found such a statement “offensive.”

“Rather than fixing the law,” she continued, “Congress is asking those of us who enforce the law to turn our backs on the law and not enforce the law.”