The outrage over the separation of families at the U.S.-Mexico border was delayed – some of the triggering photos were more than three years old and were taken during the previous administration. In defense of the protestors, you can’t take action against a policy that you don’t know about, and the news media had taken an interest in the story only recently.  The opposition was heartfelt even if late.

Minor children who arrive at the southern border in the company of an adult create a problem for an administration that intends to enforce the law.  A consent decree dating from 1997 (the “Flores settlement”) says that children in this situation cannot be kept in custody for more than 20 days.  When the adult claims a right to asylum, the problem is compounded.  It takes a lot longer than 20 days to process an application for asylum.

What is a problem for the administration is an opportunity for its opponents.  The photos and video of children wrapped in foil blankets, being processed in facilities walled with chain-link fence, or crying for their mothers forced the administration to change course.  The age of the photos and their provenance were less important than their impact.

The photo that made the cover of Time magazine tells the story.  The crying child was not alone.  She was set down by her mother so that the mother could be processed.  The two were not separated.  The iconic photo misled Time’s readers. In fact, the mother had left three other children behind in Guatemala.  Her husband, gainfully employed, reports that his wife has always dreamed of living in the U.S.  This was the second time she had been caught trying to enter the country illegally.  Her claim for asylum is not well founded.

Time stood by the photo.  They might as well have said out loud that the purpose of the cover was not to present news but to influence policy.

The gambit worked. The president quickly changed course and allowed children to stay with their parents. Despite his self-proclaimed skill as a negotiator, he seems to be influenced more by the last thing he sees or hears than by any firmly held strategic plan (except when it comes to free trade, where he holds fast against it).

I had been wondering how the administration would finesse the problem in its new form.  How would they keep families together, adhere to the Flores settlement, and enforce the law on entry into the country? Twenty days is not a long time to wait to find out how they would square the circle.

I thought they might argue that minor children united with their parents in a detention facility are not being detained.  After the 20-day holding period is over, minor children in that situation could be considered visitors.  They would be free to leave if another family member, lawfully resident in the U.S., would take them and if their parents agreed.  But for as long as the parent agreed to have the child remain a visitor in the facility, parent and child would be free to remain together.

I don’t know if the administration would have used that argument or if it would have succeeded if challenged.  The question may no longer be in play after the latest court decision on the subject.  The president’s opponents may have accomplished more than they intended.

Opposition to the policy on reunification has led to an attack on enforcement itself.  The opponents of the president’s policy were not satisfied with the executive order reuniting parents and children.  The thousands who marched this past weekend did so after the president changed course and allowed reunification.  Last week, the ACLU obtained a court order requiring children under 5 to be reunited with their parents within 14 days and other minor children to be reunited within 30 days.

Why press for legal relief when you have already won politically?  Could the objective be to achieve the suspension of immigration enforcement at the border?  The judge did not order families to be released from custody.  He does not have the authority to do so (but that may not matter if the case comes before him again).  I think the judge and the ACLU have solved the administration’s immediate problem.  If children and parents are to be kept together in detention centers, it will be pursuant to the judge’s order rather than in violation of the Flores settlement.  Implementing the Flores agreement – removing the children from the detention center after 20 days – would contravene the order in the ACLU litigation. The ACLU is running a TV ad touting their victory over the Trump administration.  They may have succeeded in helping to overturn the Flores settlement, something the administration might not have been able to accomplish any other way.