Federal law, not President Trump, dictates how unaccompanied children and family units are treated at the border

Between 2009 and 2016, more than 242,000 unaccompanied children arrived at the southwest border, according to data compiled by U.S. Customs and Border Patrol, averaging about 30,000 a year. In 2016, that number was about 20,000.

In addition, in 2016, about 23,000 family units were apprehended at the border. According to CBP, "Family Unit represents the number of individuals (either a child under 18 years old, parent or legal guardian) apprehended with a family member by the U.S. Border Patrol."

Normally, what happens, per a 2008 federal law against human trafficking and federal court rulings, is unaccompanied children are given to the care of the Department of Health and Human Services, and eventually released, ideally to a relative residing in the U.S., within 20 days.

As for the adults, there is no provision of law allowing them to stay, even if they arrived with children. If upon capture and pleading guilty and being released to ICE custody, they elect to be deported, however, they can return home with the children before the child is required to be released within the 20-day court-imposed deadline - provided there is time to hear the case.

If the adults apply for asylum, that complicates matters. Asylum cases typically take longer than 20 days to process, meaning under the law, the child will be released to a relative in the U.S. while the asylum case is being heard.

This is where the issue of "child separations" occur, or when the criminal prosecution takes longer than 20 days. Out of the 20,000 or so family units apprehended, a subset of the adults are claiming asylum or get caught in the backlog of illegal immigration cases.

In the past, this meant, according a White House fact sheet, the government would "release the entire family unit into the U.S. interior. Once released into the U.S. interior, these family units frequently disappear into the country, failing to appear for their court hearings or comply with removal orders."

Meaning, the separations, when they occurred in the past were often temporary and became a standard feature of how the federal government processes illegal immigrants at the border.

It's called "catch and release," which the Trump administration is ending.

According to Homeland Security Secretary Kirstjen Nielsen, who spoke to the press at the White House on June 18, "What has changed is that we no longer exempt entire classes of people who break the law. Everyone is subject to prosecution. When DHS refers a case against a parent or legal guardian for criminal prosecution, the parent or legal guardian will be placed into the U.S. Marshals Service custody for pretrial determination, pursuant to an order by a federal judge. And any accompanied child will be transferred to the Department of Health and Human Services and will be reclassified as an unaccompanied alien child. That is in accordance with the TVPRA - a law that was passed by Congress - and a following court order, neither which are actions the Trump administration has taken."

By following the law, then, the separations become mandatory. The choice becomes to enforce the law and separate the families, or not enforce the law. As Nielsen noted, "Until these loopholes are closed by Congress, it is not possible, as a matter of law, to detain and remove whole family units who arrive illegally in the United States."

The Trump administration for its part is prosecuting the illegal immigrants, whether they arrived with children or not. The separation, compelling the child to stay while the parent or adult accompanying the child is deported, is mandated by law.

Per Nielsen, "We will separate those who claim to be a parent and child if we cannot determine a familial or custodial relationship exists? if there's no documentation to confirm the claimed relationship between an adult and a child, we do so if the parent is a national security, public or safety risk, including when there are criminal charges at issue and it may not be appropriate to maintain the family in detention together. We also separate a parent and child if the adult is suspected of human trafficking. There have been cases where minors have been used and trafficked by unrelated adults in an effort to avoid detention. And I'd stop here to say, in the last five months, we have a 314 percent increase in adults and children arriving at the border, fraudulently claiming to be a family unit. This is, obviously, of concern. And separation can occur when the parent is charged with human smuggling. Under those circumstances, we would detain the parent in an appropriate secure detention facility separate from the child."

Clearly Congress needs to step in and close off catch and release and allow family units to be jointly deported when the process takes longer than 20 days. In addition, Congress could allow those family units to jointly apply for asylum if they don't mind waiting in custody together for the time it takes to process the case. If the issue is to prevent family separation, then federal law should allow the families to stay together - as they're either deported or await asylum adjudication together.

As Nielsen noted, "we need Congress to fully fund our ability to hold families together through the immigration process." Well, how about it, Congress? Or is their solution for President Trump not to enforce the laws they pass?

Because what really looks like is happening is the combination of law and court decisions has a created a de facto open border when presidents do not wish to enforce the law. This in turn creates a perverse incentive to bring children to the border in a bid to enter the U.S. illegally, because of these "catch and release" policies.

In a statement Americans for Limited Government President Rick Manning noted, "It's ironic that we have a President who is standing up for Congress' Article I lawmaking power and we have members of Congress saying not to enforce the laws Congress wrote. President Trump is being attacked for following the law that Congress wrote and courts have applied."

In 2016, President Trump vowed to set a different standard. Finally, we have a President whose top priority is enforcing the law. On June 20, the President issued an executive order stating, "The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members?" but not "when there is a concern that detention of an alien child with the child's alien parent would pose a risk to the child's welfare."

But as Manning noted in his statement, "Executive action is no substitute for Congress exerting its Article I authority and fixing the law, as it can be overturned both by the federal court and by a future President." Meaning the only permanent solution is for Congress to act.

If Congress does not like the family separations, then Congress needs to change the law to make it possible to deport family units together. There shouldn't be any amnesty for arriving at the border with children, or else we will be putting more children of danger of being kidnapped and subjected to human trafficking.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.