BOB GARFIELD: From WNYC in New York, this is On the Media. I’m Bob Garfield.
BROOKE GLADSTONE: And I’m Brooke Gladstone, with chaos -- unintentional or strategic, whether a policy or a law or a deterrent or a whim, it sent politicians scrambling or screaming into the darkness --
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-- or screaming at each other.
ANN COULTER ON FOX NEWS: I would also say one other thing, these “child actors” weeping and crying on all the other networks 24/7 right now, do not fall for it, Mr. President.
STEPHEN MILLER, SENIOR POLICY DIRECTOR: This is an ideological disagreement between those who believe we should have borders and should have controls and those who believe there should be no borders and no controls. And the bottom line is the president's powers, in this area, represent the apex of executive authority.
FEMALE CORRESPONDENT: Taking a stand against the White House, American, Southwest, Frontier and United Airlines are all asking the Trump administration to not put migrant children who have been separated from their parents on their flights.
MALE CORRESPONDENT: A former head of the Department of Immigration & Customs Enforcement warned us that babies and children who have already been separated from their parents under the Trump policy might never, ever be reunited.
ZAC PETKANAS, DEMOCRATIC STRATEGIST: I read today about a 10-year-old girl with Down’s syndrome who was taken from her mother and put in a cage.
COREY LEWANDOWSKI: Wah-wah.
ZAC PETKANAS: I read about a, a -- Did you just say `Wah, wah’ to a 10-year-old with Down syndrome being separated from her mother?
How dare you?
MALE CORRESPONDENT: A stunner, the number of children shipped to New York, some as young as nine months old, under President Trump’s Family Separation policy, is much, much higher than we could have imagined.
TUCKER CARLSON, FOX NEWS: A lot of the people yelling at you on TV don’t even have children, so don’t for a second let them take the moral high ground.
ARI MELBER, THE BEAT/MSNBC: …These are children. For god’s sake, America, what’s happening to your soul?
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BROOKE GLADSTONE: One thing in short supply in the fog of outrage was clarity. What, if anything, is the law that Trump first said compelled him to act in such a manner? What's going to happen to the roughly 2300 missing or relocated children, hundreds of whom were sent to New York City through a private contractor, all unbeknownst to the mayor? What, if anything, was the meaning of Melania’s jacket? And what happened to my sense4 of proportion? We’ll take on the first question about the law that Trump said forced him to tear migrant and refugee children from their parents, until he decided it didn’t. We’ll focus on that because it's a way to parse the legal quagmire that confronts those families. Dara Lind has been covering all of this for Vox. She says it begins with a consent decree called Flores.
DARA LIND: Jenny Flores came to the US in the 1980s. She was 15. She was coming from El Salvador, fleeing her home country and trying to find an aunt who was living in the US. Instead, she got detained in a facility where she was sometimes sharing bathrooms with adult men and women. She was strip searched. The ACLU sued on her behalf and said that there was a constitutional right for, you know, a child who comes to the US without an adult guardian not to be treated like a criminal but to be released to a responsible adult. And federal courts ultimately agreed that there did need to be separate standards for children who were being held in immigration detention.
When President Obama started using widespread detention of immigrant families in 2014, some advocacy groups went back to the Flores agreement and said that should also apply to children who are being held with their parents in detention. And in 2015, they got a federal judge to agree to extend the Flores agreement to children who were accompanied when they came to the US and to say that it was unreasonable for them to be held in immigration detention for more than about 20 days. So, instead of holding the whole family together for 20 days and then releasing the child and keeping the parents, the government adopted a practice of releasing the entire family together, in most cases, after a shorter period of time.
BROOKE GLADSTONE: Now, you wrote that getting rid of Flores has been in the administration’s sights for months.
DARA LIND: So several months ago, the Trump administration started raising a big alarm about the loopholes that were in the law, and one of the things that they pointed to was that they had to release families, that they couldn't keep families in immigration detention while their cases were pending. So, as there was increased outrage over the family separation that the Trump administration was engaging in for the last several weeks, Republicans, led by the Trump administration, increasingly started pointing to, well, there's this court settlement that tells us we have to let families go after 20 days; that's why we have to separate them.
BROOKE GLADSTONE: So, can this rollback of Flores even stand? I mean, the president can't just undo a law with an executive order, can he?
DARA LIND: No, no, and what the executive order says is that, you know, it directed Jeff Sessions and the Department of Justice to file with the judge in the Ninth Circuit who has been overseeing the Flores agreement, Judge Dolly Gee, and ask her to basically roll back the changes she made in 2015.
BROOKE GLADSTONE: They’re saying, we are asking you to change your opinion.
DARA LIND: Yes, exactly. They gave the judge 19 days to figure out whether or not she's going to reverse her opinion. And if she doesn’t make a decision within those 19 days, then the people who got detained on the day the executive order got signed, in theory, will either have to be released or be detained in violation of the existing agreement. So, if nothing changes, then the Trump administration has essentially three options. It can release the family and engage in catch and release, which it has made extremely clear it does not see as an option. It can separate the family by releasing the child and keeping the parents. Or it can just continue to defy the law and basically dare the courts to step in and tell them that they're defying the law.
We did get a hint of what they consider the right option to be. In their filing at the Ninth Circuit to try to change the Flores decree, they said that if the family could not be detained together, ICE would be required or, rather, ICE is required to separate the family, which does give us a hint that that's what they see the alternative as being.
BROOKE GLADSTONE: Mm-hmm. There's also an opportunity here to frame the issue as either you do it my way or you’re throwing open the borders and everybody can come in with their drugs and their worst people and their rapists and blah-blah-blah.
DARA LIND: Yeah, the Trump administration definitely thinks that they're putting pressure on both Judge Gee and Congress right now. After the executive order got signed, Department of Justice Advisor Gene Hamilton who is close to Jeff Sessions, had a press call where he said, explicitly, Judge Gee is going to have to make a choice about whether families can be detained and simultaneously was saying, well, the House has two bills in front of them this week. Both of them would codify the government's ability to keep families in detention. They would override the Flores decision, so if Congress wants to fix the problem that's what it can do. This is not the first time that they've done something as a way to pressure Congress into doing something. That's what they tried when they tried to rescind the Deferred Action for Childhood Arrivals program.
BROOKE GLADSTONE: Mm-hmm.
DARA LIND: That's what they've said whenever anyone has had any problems with their immigration enforcement tactics, is that if people don't like the laws they have to change the laws. They absolutely think that they are pulling a strategic move that is going to result in them getting what they want.
BROOKE GLADSTONE: Mm-hmm.
DARA LIND: They have, thus far, extremely totally failed at getting what they want from Congress. [LAUGHS]
BROOKE GLADSTONE: [LAUGHS] What happens if Trump decides to take the third option you posited and continues to separate families, violate Flores? I mean, who do we send out, the National Guard against ICE?
DARA LIND: Yeah, I mean, in theory under this logic, it's not just that Trump continues to detain families for, you know, a 21st day. It’s he continues to detain families. Someone files a motion with Judge Gee. She tells him to freaking stop doing that. The Ninth Circuit tells him to stop doing that. It goes all the way up to the Supreme Court and the Supreme Court says, you have to stop, you have to release families.
Now, that does raise a question, given the conservative turn of the Supreme Court, as to whether, if it got to that level, the Supreme Court would, in fact, say that the 2015 expansion of Flores was bad and that it shouldn't apply to children who are here with their parents. But assuming that the Supreme Court said, you have to release families and Trump refused to do it, yeah, you have an Andrew Jackson-level constitutional crisis on your hands.
That said, and I say this as someone who is well aware that the Trump administration has often been cavalier in its interest in the legalities of whether it can do something before it does it, they have abided by court orders that have told them to stop doing things, consistently. You know, when the courts ordered them to reopen the DACA program, they did that. When they were told to not defund sanctuary cities, they have complied with that. Even the order that the president has to not block people on Twitter, somebody went through and unblocked everybody.
The thing that is important to remember there, though, is that they don't have to be in violation of Flores. They do not appear to see the family separation option as totally dead. Even the executive order does not actually say anything about not being able to separate families. It explicitly says that families should still be separated when the government deems it necessary for public safety. So they wouldn't have to engage in constitutional crisis. They could just return to the policy that they've engaged in and kind of cross their fingers and hope that this time nobody gets as mad because they tried to do something else and were thwarted.
BROOKE GLADSTONE: Dara Lind is a senior reporter at Vox where she focuses on immigration.
Now we’ll pick up on her last point, that the Trump White House may simply carry on as it has, all the while banking on the assumption that protest will be stilled by emotional exhaustion. And so it may be, according to a recent Pew study, for people on both sides of the political divide, exhausting and familiar and perilous. As Slate columnist and host of the podcast Amicus, Dahlia Lithwick observes.
DAHLIA LITHWICK: A year and a half ago, the initial travel ban, when everyone went out to the airports and just sat there at Baggage Claim, I can’t imagine what it would take for us to do that again. But what's happening to these children [LAUGHS] at the borders is vastly worse, so we are changing. It’s not as though the actions are more benign and [LAUGHS] our response is to go numb.
BROOKE GLADSTONE: Let me play you this from David Frum of The Atlantic. He made this point a couple of weeks ago on CNN.
DAVID FRUM: There may be things that news rooms can do differently or better to help people keep better track of the stories, but it's also your responsibility as a citizen. You can't put your responsibilities on the press and say, why didn't you make this easier for me or more entertaining?
BROOKE GLADSTONE: Mm.
DAVID FRUM: Why didn't you make the news less frightening than it really is? I would like a different truth, please. The job of the press is to tell you the truth as it is, whether it's good news or not, and then it's your responsibility, as a patriot and as a citizen, to accept it and to internalize it and to act on it.
BROOKE GLADSTONE: So he’s saying stop blaming the press! But has the press contributed to this insanity?
DAHLIA LITHWICK: I think that the press is the cause of and also the solution to the insanity, Brooke. I think that certainly the press has a lot to answer for in terms of election coverage, campaign coverage. They’ll be writing books about that forever. The breathless hanging on every Trump tweet and every salacious and ridiculous thing he says in order to get attention, we have certainly, I think, been complicit. But I have to agree with my fellow Canadian, David Frum. [LAUGHS] [BROOKE LAUGHS]
I think that we are doing our very best under circumstances that have no analog, at least in my lifetime, and I think that to say, oh, the press is paying too much attention to Stormy Daniels of Michael Avenatti or too much attention to the tweets or the Russia scandal, whatever the complaint is, my answer is, yes, and. We have to pay attention to all of it and take it in and figure out our lane. That doesn't mean getting exhausted or getting depressed or drinking yourself into a stupor every night by 6 o'clock but it does mean, I think, not faulting the press for doing their level best. It means find press that’s meaningful to you, that's doing work you support on issues you care about, and pay them [LAUGHING] and support them and reward them.
BROOKE GLADSTONE: The greatest challenge, perhaps, is not just keeping up with the news and mobilizing but sustaining the energy, even when the results don't seem to materialize. This gets to what Masha Gessen called “outrage fatigue” in a conversation we had back in January.
MASHA GESSEN: What we saw in January of last year with the travel ban was a textbook example of how democracy should work. The president did something abhorrent and formal and informal institutions kicked into gear at the same time. So we saw civil society putting pressure on the judiciary and stopping the travel ban. And then Trump put forward Travel Ban 2.0, and the institutions were a little bit fatigued but were able to resist, and then Travel Ban 3.0, and the resistance was partial but it still worked. And by the time Travel Ban 4.0 rolled around, nobody noticed.
DAHLIA LITHWICK: You can see even the judges getting tired [LAUGHS]. You know, judges who were horrified the first time they were hearing these cases are more and more of the view that, yeah, yeah, so he tweeted awful things. So there’s another layer that's a little scary, which is that social media gives us the illusion that we've acted because we click Like, ‘cause we tweet something --
BROOKE GLADSTONE: Mm-hmm. [AFFIRMATIVE]
DAHLIA LITHWICK: -- or we post something, and then we think, it's like going to a March. And I think we have to remind ourselves that all the shruggy emoji guys in the world are not political action.
BROOKE GLADSTONE: Dahlia, I don’t know, you sound kind of like an activist.
DAHLIA LITHWICK: [LAUGHS] I always tell people I'm the most small “c” conservative radical you'll ever meet.
I look at my kids and I think they just cannot, cannot grow up in a world where people are hearing a president say that we are “infested” with immigrants. So, yes, I am so poorly constructed for this but I think I got to do it anyway.
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BROOKE GLADSTONE: Dahlia, thank you so much.
DAHLIA LITHWICK: Thank you.
BROOKE GLADSTONE: Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.
BOB GARFIELD: Coming up, the Trump administration’s zero-tolerance policy was meant to send a message but what message was received?
BROOKE GLADSTONE: This is On the Media.