A federal district court judge in California has finally issued a long-awaited decision on detention of alien families and unaccompanied alien minors, ordering the Department of Homeland Security (DHS) to explain to her no later than August 3 why those detained should not be released, having found that the conditions of their detention violated a previous settlement in a court case dating back nearly a decade.
According to media reports, the judge described the conditions of detention as "deplorable". A July 2015 Government Accountability Office (GAO) report on the conditions relating to families and unaccompanied minors did not make such stark assessments, although neither did it give either DHS or the Department of Health and Human Services (HHS), whose Office of Refugee Resettlement is engaged in resettlement, a clean bill of health. Also according to the media, DHS has not yet decided on whether to appeal to the Ninth Circuit Court of Appeals (the most liberal in the country, and unlikely to disturb the decision of District Court Judge Dolly Gee).
The ruling puts DHS and its subordinate immigration enforcement agencies, Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), in an untenable situation. Failing any capacity to put families of border crossers, or minors crossing alone, into detention, they will be obliged to engage in the most obvious game of catch-and-release, making not even the pretense of being able to hold and then remove these families—which pretense is about the only thing that has happened to date at the will of the White House, whose unenthusiasm for return of any alien is at this point a matter of notoriety. Really, the detention of families and minors to date has been nothing more than a distraction; a shell game used to mask from the public the fact that, in the end, no one was going to be required to leave the United States.
As my colleague, Jessica Vaughan, has documented, very few of these aliens are returned, and the inflow has never ceased (see here and here); it simply subsided from its peak, when it was a tidal wave of humans crossing for several months last summer. And the only reason it subsided was because the administration put pressure on its southern neighbors to end the problem for them, which Mexico has done quite capably. According to scholars at the Mexico Institute of the Woodrow Wilson Center, in 2014 Mexican authorities took into custody and detained 120,000 illegal migrants on their southern border with Guatemala, and that figure is most assuredly likely to rise in 2015—assuming that 1) they continue to exhibit an interest in assisting the United States, and 2) the chaos and dismay among Mexican government and law enforcement over the escape of Sinaloa cartel leader El Chapo Guzman doesn't overwhelm and distract them from other duties.
Imagine the surprise of DHS leaders and their White House bosses that their detention shell game has, so to speak, exploded in their faces with the outcome of this lawsuit.
What can we in the U.S. expect as a result of the judge's decision if it is left standing? Quite possibly, as the word gets out, an uptick in the number of illegal border-crossing arrivals who "meet spec"; that is to say, many more families and unaccompanied minors (who statistically are almost all males in their mid-to-late teens, many on the cusp of the age of majority, according to the GAO report).
This, in turn, puts the administration into a pickle. Its politicos may have a visceral dislike for all immigration enforcement, but they are smart enough to connect the political dots in the season leading up to the presidential elections, and to understand very clearly that another unrestrained surge of border crossers may sink the Democratic candidate, or indeed anyone who appears to the electorate to be squishy on controlling our southern frontier.
It will be interesting over the next several weeks and months to see how this plays out, although you can be sure that much of the internal White House debate, and any additional arm-twisting of southern neighbors to do for us what we apparently lack the will to do for ourselves, will take place behind closed doors.