Democrats call the Trump administration cruel for separating children from parents caught crossing the border illegally. Authorities separate the families so the parents can be jailed and prosecuted. The children are placed with relatives or other foster care.

Over 2,000 children have been separated from their parents since April under this policy. Reacting to pressure, Trump reversed this policy on Wednesday with an executive order.

Trump’s No Tolerance

Trump started the new “zero tolerance” policy in April. First time offenders are charged with misdemeanors. Repeat offenders are charged with a felony. Entering the country illegally is not merely a civil violation. First time offenders can be sentenced up to six months in jail.

The Supreme Court decided in the 1996 decision Flores v. Reno how illegal immigrant children should be treated. The policy favors release of the minors. It places children who remain in federal custody in the least restrictive environment.

They cannot be detained for more than 20 days. They cannot be jailed. If the parent pleads guilty to illegal entry, the family is reunited quickly and they are deported together. If the adult applies for asylum — which the Central Americans have little chance of getting — it slows the process down. Once the prosecution and incarceration process is finished, the family is reunited in civil detention and deported together.

This isn’t unusual. A parent who commits any crime in the U.S. that involves incarceration is separated from their children. Most other countries do this.

Not a New Policy

The zero tolerance policy dates back to the Bush administration. George W. Bush launched Operation Streamline in 2005. All illegal immigrants were put in jail, but exceptions were made for parents traveling with children.

There was a dramatic increase in minors crossing the border illegally under the Obama administration due to Obama’s decision to allow legal status for the Dreamers. Those illegally crossing the border likely did not realize it did not apply to new arrivals. Under the Obama administration, illegal immigrants were less likely to be detained, as part of a “catch and release” policy. Some were released and fitted with a GPS ankle bracelet to ensure they returned for their court date. But many never showed up for the court hearing and disappeared into the U.S.

In 2014, the Obama administration housed the children in closed housing units while their parents were being processed. But after an outcry over images of children being held in temporary housing, a federal judge struck down the practice of detaining mothers with their children. The Ninth Circuit ruled that it violated the Flores agreement and was inhumane.

Ironically, the practice of keeping mothers with their children is what led to separating them. In 2016, the Ninth Circuit held that Flores did not require release of the parents.

Eighty percent of women and children who travel from Central America to the U.S. to enter illegally are raped along the way. Since 1995, 10,000 people have died while trying to sneak into our country. Encouraging this to continue, which often means embarking on a dangerous trip with smugglers to enter the country, means more will die and be raped. In addition, many of the adults and children coming over the border falsely pretend to be families.

Solutions

Sen. Ted Cruz, R-Texas, has proposed a bill that would house illegal immigrants with their children in detention centers together. This is how they were often treated under the Obama administration. His bill would also require that asylum requests be handled within 14 days. It would speed up deportations and double the number of immigration judges. More family detention centers would be built.

President Trump’s executive order is similar. He says he still expects Congress to follow with similar legislation. Some fear this approach will run afoul of the Flores case. A broader immigration bill being proposed would address some of this. It would allow children to be detained longer than 20 days.

Sen. Diane Feinstein, D-Calif., proposed a bill that would ban the separation of families at the border unless there is evidence that a child is being trafficked or abused by his or her parents. But there is no provision in it to ensure that the parents are prosecuted. It would likely revive catch and release.

“Having children does not give you immunity from arrest and prosecution,” Attorney General Jeff Sessions said in a speech on Thursday in Fort Wayne, Ind. Separating families serves as a deterrent to entering the country illegally. If families come to the border and apply for asylum instead of crossing the border illegally, they will not be separated.

For the Democrats, who support amnesty, it’s not about stopping the practice of separating children from their parents. It’s about using the children as a ruse to release the parents into the U.S. so they can avoid the consequences of prosecution. Otherwise they would agree to Cruz’s bill, which keeps families together. It is very similar to the practice under the Obama administration.

Follow Rachel on Twitter at Rach_IC.