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Hasty immigration order gives way to West Wing tensions

Facing an unprecedented outpouring of public outrage this week over the separation of migrant families at the border, President Donald Trump did what he usually does when he wants a quick fix: Asked for an executive order.

Trump frequently demands executive orders to carry out policies he wants to implement as a way of circumventing the long process of working with Congress to pass legislation, according to a former administration official – a move he picked up from former chief strategist Steve Bannon, who in the opening months of the Trump presidency, used the directives to carry out his “shock and awe” strategy.

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On Wednesday morning, the president asked for a document that would — at least temporarily — reunite parents and children separated by his administration’s zero tolerance immigration policy. That afternoon, over the objections of several of his senior advisers and lawyers, he signed an order that had been dashed together in a matter of hours.

Typically, executive orders are the product of weeks of collaborative work: A draft is circulated within the White House and across the relevant agencies and officials offer comments and feedback before a final version is produced for the president to sign.

The order Trump signed this week, hastily written amid an escalating crisis and rushed to his desk before he left town for a political rally, was the opposite. While it stanched the flow of negative media coverage, beginning the process of reuniting children and parents, the vaguely worded immigration order created a new set of problems for the administration.

At agencies from the Department of Homeland Security to the Department of Justice and the Department of Defense, which has been asked to help house illegal immigrants and their children, officials say they remain uncertain how to carry out an order they aren’t sure is legal in the first place.

Those concerns boiled over on Thursday afternoon in a contentious Principals Committee meeting chaired by White House chief of staff John Kelly. Inside the White House Situation Room, senior administration officials grappled with basic questions raised by the directive. Where should immigrant families be housed as parents await criminal prosecution? Can you keep families together, when the parents are technically in custody, and the children are not? Should the administration create new facilities to accommodate them? Would the courts intervene to prevent them from acting at all? It was an exercise in policymaking on the fly.

“It was policy based on a PR-messaging impulse,” said one person briefed on the meeting.

Administration officials usually succeed in preventing the implementation of executive orders, according to one former administration official — sometimes simply by telling Trump, truthfully, that they wouldn’t hold up in court.

Stephen Miller is pictured. | Getty Images

Though Kelly and White House counsel Don McGahn objected the president’s decision to sign Wednesday’s executive order, they did not vocally oppose him, a symptom, one administration official said, of the president’s most senior advisers recognizing the futility in trying to stand in his way.

The White House did not immediately respond to a request for comment.

The administration is trying to chart a middle ground between the family separations, which were the result of the Trump administration’s decision to make crossing the border a criminal rather than a civil offense, and simply releasing illegal immigrants who arrive with children into the U.S. Under a 1997 federal settlement, the government cannot hold children with their parents longer than 20 days – not enough time for adults to get a court hearing given extensive backlogs.

One White House official argued earlier this week that if a judge would scrap the federal settlement, it would allow migrant parents to remain with their children in detention longer and thus solve the issue.

Inside the White House, the executive order was viewed as a serious blow to senior presidential adviser Stephen Miller, including by Miller himself. The White House’s most vocal immigration hawk has told allies that it will be impossible for the administration to maintain its so-called “zero tolerance” policy while keeping parents and children together, and that a return to the “catch and release” policy of previous administrations, where undocumented immigrants are freed inside the U.S. and told to show up for court hearings, is the most likely outcome.

Another former administration official said the mess over separations would also imperil Miller’s other policy moves on immigration, including several draft executive orders and proposed agency rules that he had hoped to roll out before the mid-term to appeal to the president’s conservative base.

A migrant child and mother are pictured. | Getty Images

Miller’s detractors, meanwhile, blame the current state of affairs on a policy process that he has managed unilaterally. They describe an unspoken truce between Miller – who had originally hoped to control the entire White House policy shop, exerting his influence on trade and other issues as he did during Trump’s 2016 campaign – and some of the president’s other policy advisers, such as former National Economic Council director Gary Cohn.

The deal meant that other White House officials cut Miller out of their signature issues, and in exchange they tacitly allowed him run immigration policy on his own aided by a network of like-minded immigration hawks working in various agencies. That deal worked out for them when there was little movement, from the White House, on immigration issues apart from Miller’s attempts to institute a travel ban. But now his unilateral control over the issue, according to former White House officials, is seen as partially responsible for the biggest domestic crisis of Trump’s presidency to date.

And the blame game has already begun following the executive order roll-out. Agency officials have criticized a White House that largely keeps them out of the loop on its immigration moves under Miller’s control, while West Wing aides have blamed the agencies for the creating a mess by sticking with the zero-tolerance policy.

Agencies are beginning to take steps toward reuniting parents and children already separated.

The Department of Health and Human Services on Friday created an “unaccompanied children reunification task force,” a first step toward reunifying thousands of migrant children in the agency’s custody with their families, according to an internal document obtained by POLITICO.

The task force was established by the assistant secretary for preparedness and response — the arm of the agency that responds to public health disasters, and an indication that the challenge of reunifying thousands of families is likely beyond the capabilities of the refugee office.

“The Secretary of Health and Human Services has directed the Assistant Secretary of Preparedness and Response assist the ACF Office of Refugee Resettlement with Unaccompanied Children Reunification,” the order reads. The agency’s Emergency Management Group, which operates out of the HHS secretary’s operations center, also was activated.

HHS did not immediately respond to request for comment.

As the administration scrambles to implement Trump’s directive, a legal showdown over the new family-detention policy appears to be at least a few days away.

The central fight over Trump’s new policy seems likely to take place in federal court in Los Angeles, where Justice Department lawyers filed an emergency request Thursday to alter a decades-old consent decree so that immigrant children can be detained along with their parents. Federal government lawyers said the settlement in the long-running case, as interpreted by U.S. District Court Judge Dolly Gee and confirmed by an appeals court panel, currently bars authorities from holding children for more than 20 days in most cases.

Dan Diamond and Josh Gerstein contributed to this report.

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