Fact or Fiction: Are Democrats to Blame for the Law Requiring Families to Be Separated at the Border?

In the midst of backlash over a new “zero tolerance” policy on immigration enforced by the Justice Department, President Donald Trump has come under fire for measures to curb illegal immigration that separate parents from their children.

Trump, in turn, has recently blamed the policy of splitting up families on a law enacted by Democrats, claiming that his opponents in Congress are blocking attempts to fix the immigration system to get rid of the “horrible law.”

But are Democrats really responsible for the policy of separating families at the border? And what law is the Trump administration talking about anyway?

Let’s get down to brass tacks.


Democrats are responsible for a law forcing the federal government to separate parents from their children when caught trying to cross the border illegally.

During a May 16 roundtable discussion with California officials on immigration policy, the president spoke to Homeland Security Secretary Kirstjen Nielsen about being forced to split up families, and said it’s all the Democrats’ fault:

“I know what you’re going through right now with families is very tough but those are the bad laws that the Democrats gave us. We have to break up families. The Democrats gave us that law. It’s a horrible thing where you have to break up families. The Democrats gave us that law and they don’t want to do anything about it. They’ll leave it like that ’cause they don’t want to make any changes. And now you’re breaking up families because of the Democrats. It’s terrible.”

Trump later posted a tweet calling out Democrats again for the law, arguing that it’s up to them to end the policy and reform other problems in the immigration system.

Most recently, Trump brought up the topic again on Tuesday, criticizing Democrats for trying to pin the policy on his administration when some opponents of the president posted outdated photos purporting to show children separated from their parents under the current administration.

So with both sides playing the blame game, is the president right to place all responsibility with Democrats?


Turns out, the policy of separating families trying to cross the border illegally isn’t a law in itself. Instead, it stems from a “zero tolerance” policy advocated by the Justice Department under Attorney General Jeff Sessions, which calls for stricter adherence to existing laws.

This means that the Justice Department, which has jurisdiction over all immigration courts, will criminally prosecute those crossing illegally. If these would-be immigrants have children with them, they are separated since minors can’t be placed in immigration detention centers.

According to the Bipartisan Policy Center, prior to the Trump administration, “family units were hardly ever detained, but rather processed and released with a notice to appear at immigration court.” Going back to the presidency of George W. Bush, this policy was designed to offer noncriminal immigrants a way to earn temporary status in the U.S. while awaiting a ruling on whether they would be granted asylum.

The Trump administration has criticized these policies of leading to “catch and release” method of border security, with Trump calling for a more hardline approach that adheres more closely to current laws.

So which laws are we talking about here?

In a statement from the Department of Homeland Security, it referenced a 1997 court settlement and a 2008 anti-trafficking law both pertaining to minors crossing the border as part of the reason for why the Trump administration is forced to separate families.

In the 1997 legal settlement, the court ruled that DHS can only detain minors at the border for a maximum of 20 days, before being required to release them to foster families or shelters if the kids are unaccompanied.

Meanwhile, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, requires minors entering the U.S. from countries other than Mexico and Canada to be placed in the Office of Refugee Resettlement or given to relatives in the U.S. while they wait for immigration court proceedings.

Here’s the issue: Neither case requires parents to be separated from their children. Both the 1997 settlement and the 2008 law are simply designed to manage how children are treated at the border, especially in cases in which they arrive unaccompanied by their parents.

What’s more, Democrats aren’t wholly responsible for either policy.

The 1997 settlement is just that: A settlement reached in court with no interference by lawmakers, Democrat or otherwise.

The 2008 law, designed to stem child trafficking from Central America, received wide bipartisan support and was signed into law by then-President George W. Bush, a Republican.

Fact or Fiction.


After taking a look at the policies DHS itself sees as the root of the issue of “breaking up” families, it’s clear that you can’t blame it on the Democrats.

DHS argues that the 1997 settlement and the 2008 law encourage loopholes for immigrants with children, which could explain why the Trump administration is targeting these two issues for reform. But they don’t support the president’s claims.

Of course, the argument can be made that congressional Democrats are needed to make the necessary reforms that could close the loopholes and curb illegal immigration, but Trump’s comments that the Democrats “gave us that law” don’t seem to add up.

What do you think?

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