Tucked in the One Big Beautiful Bill Act is language the Trump administration hopes will allow border officials to detain illegal immigrants indefinitely, as its authority to do so makes its way through the courts.
The law, passed by a GOP-controlled Congress in July, contained provisions that could allow the federal government to detain families through the duration of their court proceedings, something that has not been legally permissible since 1997, when a judge imposed what was known as the Flores settlement agreement that outlined detention regulations.
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Trump administration officials have touted the BBB provision as a way to prevent families that cross the border from being automatically released into the United States, given a 20-day limit on keeping parents and children in federal custody. However, Democrats and immigrant advocates have raised serious concerns about prolonged detention and the impact on children in particular.
The Justice Department made a fresh effort to repeal the agreement earlier this year, arguing that legal and practical circumstances have changed since Trump failed to convince the courts in his first term. As of last Friday, a judge was still considering the merits of the case, while supporters of Flores say the GOP tax law does not override the agreement.
Flores’s long history
Flores dates back to 1985, when the Center for Human Rights and Constitutional Law sued the government in a class-action lawsuit named after 15-year-old Jenny Lisette Flores, a girl from El Salvador who came over the southern border alone.
The lawsuit alleged that Flores was not housed separately from unrelated adults, did not receive adequate hygiene care, and was wrongly denied release to a family member.
In 1997, the court approved the Flores settlement agreement, which mandated protocols for how the federal agencies handle unaccompanied children.
Prior to this, border and immigration agencies did not have standards for detaining children. Under Flores, children would receive food, water, medical care, toilets and sinks, appropriate temperature controls within facilities, adequate adult supervision, and the ability to contact family.
Flores was intended as a temporary measure, according to the Congressional Research Service, and was to remain in effect until the government put forward regulations that the court would approve.
Protocols for the care of immigrant children changed during the George W. Bush administration after the Department of Homeland Security was created. Solo children would be transferred to the Department of Health and Human Services for care, and families would be detained by U.S. Immigration and Customs Enforcement.
New challenges
Central District of California Judge Dolly Gee, an Obama appointee, ruled in 2015 in Flores v. Johnson that children, whether unaccompanied or with family members, could not be held indefinitely and that they all had to be treated according to the terms of the 1997 settlement agreement.
At the request of the government, which wanted the ability to hold families temporarily to allow for the resolution of claims for asylum or removal, Gee allowed ICE to detain families for up to 20 days.
Central American families began to cross the southern border at record-high levels as cartels recognized that the families would not be detained more than 20 days, therefore helping facilitate their release into the country.
White House border czar Tom Homan told reporters outside the White House on Wednesday afternoon that Gee’s decision was the “worst immigration decision in the history of this nation” because judges would not be able to hear claims in the 20-day period, which would force ICE to release families and hope they would show up to court years down the road.
“I said at the time, if they did that, you would see a surge of family units across this border like never seen before,” Homan said. “What happened? I was called a fear monger by the other side, but I was exactly right. Hundreds of thousands of families rushed across the border because they knew they would be released before they saw a judge.”
In May, the Trump administration filed a motion to terminate the Flores settlement, a move that the Center for Human Rights and Constitutional Law was quick to oppose on the basis that it could set children and their families up for abuse.
“Children who seek refuge in our country should be met with open arms — not imprisonment, deprivation, and abuse,” Sergio Perez, executive director of CHRCL, said in a statement. “The Trump Administration’s move to dismiss this agreement … is another lawless step towards sacrificing accountability and human decency in favor of a political agenda that demonizes refugees.”
Trump’s defenders
Jessica Vaughan, director of policy studies at the Washington-based Center for Immigration Studies, said the changes in the GOP megabill would benefit those involved and maintain order in the immigration process.
“The law requires that everyone who crosses illegally should be detained. So you shouldn’t be able to be exempt from that because you brought your children on this dangerous journey and put them at risk. It’s not inherently cruel or punitive to keep people in custody until their case is resolved,” said Vaughan, whose organization is nonpartisan but takes a stricter approach to immigration levels.
In particular, the law has provisions that appear to allow migrant parents and their children to be held at “family residential centers” for the duration of their court case. The bill also provided billions in extra resources to allow border officials to expand their detention capacity.
While indefinite detention is more likely to be applied to people who cross the border illegally, it could be imposed on families detained by ICE inside the country to face deportation proceedings, though that situation has been the exception and not the norm so far under the Trump administration.
“Say there’s a family that has an asylum application and is denied, and they may — if the government thinks that they’re not going to comply with the removal order — put them in a facility like this,” Vaughan said. “It would be almost like a repatriation center to hold them in case they don’t show up.”
Flores’s future still up for debate
Vaughan maintained that since Congress was the one to pass legislation addressing Flores, it ought to override the court agreement.
“Congress has spoken on it, which under our constitutional system, is very powerful,” Vaughan said.
The American Immigration Council in Washington strongly criticized the language included in the One Big, Beautiful Bill, alleging it would “dismantle core legal protections for children.” The Council also recently stated that whether the bill’s language overrules the Flores settlement “is still to be decided by courts.”
Neha Desai, managing director at the National Center for Youth Law, was insistent that the Flores settlement agreement was still in good standing.
“Nothing in the text of the reconciliation law supersedes the Flores Settlement’s requirements, including the requirements that children detained in federal immigration custody be held in safe and sanitary conditions and expeditiously placed in licensed facilities,” Desai said in a statement to the Washington Examiner.
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Rep. Tony Gonzales (R-TX), whose district is the largest one on the U.S.-Mexico border, was optimistic that ICE would have adequate facilities and accommodations if families ended up being detained beyond 20 days.
“I visited these facilities under both administrations, and I’ve never had a problem with ICE facilities,” Gonzales told CBS News’s Face the Nation on Sunday. “They’ve always allowed me to view everything I wanted. I’ve taken pictures. I’ve done videos, I’ve talked, I’ve spoken to people that were there, and I think that’s the important part, our government needs to be transparent to what’s happening.”