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In 1997, the U.S. Department of Justice agreed to a settlement in a case called Flores vs. Reno. Among other things, this settlement prohibits unaccompanied children who have crossed the border from being held in federal detention facilities for longer than 20 days. In 2016, the Ninth Circuit Court of Appeals ruled that this 20 day prohibition applies to both accompanied minors (children who came along with family members) and unaccompanied minors.

This has all become relevant now because of the Trump Administration's new "zero tolerance" policy and the family separations that have resulted from it. Many Republicans, including Trump Administration officials, have argued that separating families is necessary because if a parent requests asylum, it usually takes longer than 20 days, so under the Flores settlement either the government has to let both the parent and child go after 20 days (which Republicans deride as "catch and release"), or detain the parent and release the child in which case they're separated. So they're demanding that legislation be passed overturning the Flores settlement and allowing the government to detain parents and children together for longer than 20 days (and demanding various border security measures in return).

Now this is a bit of a red herring, because the "zero tolerance" policy would separate families with or without the Flores settlement. But my question is, does the Trump Administration have the power to undo the Flores settlement on its own? Can the Executive branch break court settlements it's entered into, or does it require legislation to break a court settlement?

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    @Brythan What the zero-tolerance policy does is it prosecutes everyone who crosses the border illegally. And if a parent is prosecuted, they'll be sent to federal prison and separated from their kids, since kids can't be in federal prison. "But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time. That’s where the separation happens — because you can’t be kept with your children in federal jail." vox.com/2018/6/11/17443198/…
    – Keshav Srinivasan
    Jun 18, 2018 at 9:10
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    @Brythan there are already reports that parents are deported without their children (e.g. nytimes.com/2018/06/17/us/immigration-deported-parents.html), so that does not seem to be true.
    – user164
    Jun 18, 2018 at 9:33
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    @Brythan The issue is not the sentence issued in the criminal trial. The issue is that under the zero-tolerance policy, a parent who requests asylum has to stay in federal prison awaiting trial while seperated from their child. That is the thing that people are objecting to.
    – Keshav Srinivasan
    Jun 18, 2018 at 9:37
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    @Brythan We're not talking about what Trump wants, we're talking about the policy as it currently exists. The current policy causes seperation of families, and what causes the policy to separate families has nothing to do with the Flores settlement. The Flores settlement might be what motivated Trump to enact the policy he has enacted, but that's a different issue.
    – Keshav Srinivasan
    Jun 18, 2018 at 9:44
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    @Brythan If there was no zero-tolerance policy, then one might reasonably argue "We can either release both the parent and the child or detain the parent and release the child. The former risks the parent not showing up, so we have to do the latter. It's all the Flores settlement's fault." But that's not what's going on. These are orthogonal issues. If criminal prosecution is better because it's quicker at deportation than a civil proceeding, then it would be quicker regardless of whether the Flores settlement existed. So Flores really is a red herring.
    – Keshav Srinivasan
    Jun 18, 2018 at 10:05

1 Answer 1

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It depends exactly what you mean.

Can the Donald Trump administration unilaterally end the Flores consent decree? No. The consent decree is part of an agreement between parties. The federal government is just one of the parties. A modification would require agreement among all involved parties and the approval of the court. There is no evidence that the other parties are interested in removing the consent decree.

Could the Trump administration ask the courts to remove the consent decree? Yes, but there is no guarantee that the courts would do so. The government would have to establish that the consent decree or its side effects are more undesirable than the wrong that the consent decree was created to address. This is generally a high bar, as the government consented to be limited by the decree. It was part of an agreement to settle a suit. Ending or even modifying it would therefore give the other party room to argue that they should no longer have to comply with their responsibilities under the settlement.

It is for this reason that people who advocate an end or modification of the consent decree look to Congress for legislative action. If the underlying law on which the suit proceeded were changed, that would invalidate both sides of the settlement. They could replace it wholesale with a new system, set forth in legislation.

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