Reno v. Flores and the 1997 Settlement That Still Shapes Family Detention

Name the law that decides how long the government may hold a migrant child, in what kind of building, and how fast the child must be let go. Go ahead. Check the United States Code. Check the Statutes at Large. Ask your congressman.

You will not find it, because Congress never wrote it. The rule lives in a settlement agreement signed in 1997 between a government lawyer and a group of plaintiffs' lawyers, and it has been interpreted, extended and enforced by a single federal district judge in Los Angeles for decades since. It is one of the most consequential pieces of border policy in the country, and it is a very strange way to make law.

The facts of the case

Begin in 1985. Jenny Lisette Flores was a fifteen-year-old girl from El Salvador who had entered the United States unlawfully and was taken into custody by the Immigration and Naturalization Service, the INS, which then ran immigration enforcement. She was held in a facility for juveniles. The INS's policy at the time, as later set out in a regulation, was to release a detained juvenile to a parent, a legal guardian or a close adult relative, and otherwise to keep the juvenile in custody. Flores's parents were not here, and she had no qualifying relative who could take her. A lawsuit was filed, Flores v. Meese, as a class action on behalf of all alien children detained by the INS in the Western Region, challenging the conditions and the release policy.

By the time the case reached the Supreme Court as Reno v. Flores, it was framed more narrowly. The Attorney General, Janet Reno, was the lead defendant, and the question was whether the INS regulation that limited release of a detained child to relatives and guardians was lawful, or whether the Constitution and the immigration statute required the INS to release a child to any responsible adult, such as an unrelated friend or neighbor willing to take her in.

The Supreme Court's decision

The Court decided Reno v. Flores on March 23, 1993, by a vote of seven to two. Justice Antonin Scalia wrote the opinion for the Court. The government won.

The reasoning came in several steps, and they are worth walking through, because they show how modest the ruling was.

First, the statute. Congress had authorized the Attorney General to arrest and detain aliens pending a determination of deportability, and to release them on bond or parole in her discretion. The Court held that the INS regulation fell within that discretion.

Second, the Constitution. The plaintiffs argued that the Due Process Clause of the Fifth Amendment gave detained children a fundamental right to be free from government custody and to be released to any willing adult. The Court rejected that. It said the right the children asserted was not a fundamental one, and that the question was therefore whether the regulation was rationally connected to a legitimate government purpose. The government had an interest in the welfare of children, who cannot take care of themselves, and the rule that released a child to a parent, a guardian or a close relative rather than to an arbitrary adult was a reasonable way to serve it. If no relative was available, the child could be held in a decent facility rather than turned over to a stranger.

Third, a point worth underlining. Scalia pointed out that the government did not choose to take custody of these children as a policy of detaining children. The children were in the government's custody because they had been found in the country unlawfully, and the question was what to do with a child who had no parent in the country. A decision that the government must release the child to any adult who asks could expose children to harm and was not required by the Constitution. Justice Sandra Day O'Connor, joined by Justice David Souter, wrote a concurrence emphasizing that the Court's holding did not leave children without constitutional protections and that the case did not decide every question about conditions of confinement. Justice John Paul Stevens, joined by Justice Harry Blackmun, dissented. In their view, the Constitution does give a child a liberty interest in not being detained, and the government had to justify the practice by something more than the rational-basis review the majority applied.

That is the entire legal holding. A narrow regulation about to whom a child can be released was upheld. The Court did not hold that the Constitution or Congress requires a particular standard of care, and it did not set a time limit on detention. The government won.

And then came the settlement

Here the story takes the turn that matters. The Flores litigation did not end with the Supreme Court's ruling. The lower-court case continued on the remaining claims, mostly about conditions of confinement and the INS's handling of juveniles. In January 1997 the parties settled. The result was the Flores Settlement Agreement, approved by the district court, which governed the INS's treatment of minors in its custody.

The terms were reasonable on their face. The settlement set out a general policy favoring release of minors from custody "without unnecessary delay" to a parent, a legal guardian, an adult relative or another qualified adult, in that order of preference. For children who could not be released, it required that they be held in the "least restrictive" setting appropriate to their age and special needs, in facilities that were licensed for the care of dependent children, and it set minimum standards for those facilities, including safe and sanitary conditions, food, medical care, and supervision. Children could be held in a secure facility only in specific circumstances, such as a criminal record or a risk of escape. And the settlement contemplated that it would end after the government issued final regulations implementing its terms; the Agreement says it terminates forty-five days after the regulations are published.

Note the date and the posture. This was an agreement between a litigant and an agency, signed in 1997, during the Clinton administration, about a population of mostly unaccompanied teenagers in a very different border environment from today's. It was a settlement meant to resolve a case. It was written for the problem as it looked then.

How it grew

What follows is the part that conservatives, and many lawyers who do not share their politics, find troubling. The agreement outlived its original context and expanded.

For years the Agreement was understood to cover unaccompanied minors, the children who arrived alone. That changed in the 2010s, when a larger number of families, adults traveling with children, began arriving at the border. The Obama administration, in 2014 and 2015, began holding family units in detention, in part to deter further arrivals and to process their claims quickly. The plaintiffs' lawyers went back to court. In July 2015, the district judge, Dolly Gee of the Central District of California, ruled that the Settlement applied to all children in custody, whether accompanied by a parent or not. In her reading, the government's family detention centers did not satisfy the Agreement's requirements, because they were not licensed child-care facilities of the sort it called for, and because the children were being held too long.

In 2016, the Ninth Circuit affirmed the main part of that ruling. It agreed that the Settlement covers accompanied children, but it held that the Agreement did not require the government to release the parents along with the children. That distinction is the center of the policy puzzle that has followed, and I will come back to it.

Out of that litigation came a practical rule that is often called the twenty-day limit. Because the Agreement requires release "without unnecessary delay" and the court read the standard to mean that a child ordinarily cannot be held in an unlicensed facility for more than about twenty days, the government has been constrained in how long it can keep families together in detention while claims are processed. Asylum cases take months and years. Twenty days is not enough to finish them. The effect is that families are typically released into the country, with a notice to appear in immigration court, long before a decision on their claims.

In 2018, with the "zero tolerance" policy and the separation of families that followed, and then the president's executive order of June 20 of that year seeking to keep families together, the administration asked Judge Gee to modify the Settlement so that it could hold families together for longer. She declined. In 2019, the Department of Homeland Security issued a final regulation intended to implement the Agreement's standards and, in the government's view, bring about its termination under the forty-five-day clause. The district court blocked the rule before it took effect. The Agreement remains in force.

The incentive problem

Whatever the intentions behind it, the combined effect of the settlement and its extension is that a family that crosses the border illegally and claims a fear of return is usually released into the country within weeks, not detained until the claim is decided. That is a policy, and policies create incentives.

I want to be careful here. I do not claim that every family arriving with a child is gaming the system. Many are fleeing genuine danger, and some have strong claims. The point is a structural one. A system in which the presence of a child converts a detention case into a release case offers a reason for a person who might otherwise not travel to bring a child, and a reason for a smuggler to market the arrangement. The same idea appears in the account of how smuggling pricing works in How a Smuggling Network Prices a Border Crossing and Who Gets Paid. No one designed it that way in 1997. It happened because the rule was written for one problem and then stretched to another by a court, without Congress ever weighing the trade-off.

And that is the humane argument, too. A child brought on a journey across Mexico in the hands of smugglers faces serious dangers on the way, a point developed in A Secure Border Is the Humane Border, and Here Is the Moral Case. If the rule reduces the incentive for that journey, it protects children, and a rule that increases it does not.

The best case for the settlement

Let me state the defenders' case in terms they would accept.

They say: children are not like adults. Jail-like conditions harm them. Before the Settlement, children were held in conditions that were inadequate, and the agreement set minimum standards that any decent country should meet. A cold cell, a concrete floor and no access to a bed or a meal are not acceptable for a child, whatever their parents did. The Settlement is not an open-borders instrument. It says that if the government is going to hold children, it must hold them in safe and sanitary conditions and release them promptly to a sponsor whenever it safely can.

There is much in that I agree with. The minimum standards of care are not a controversial idea. No conservative should defend neglect of a child in government custody, and the settlement's insistence on decent conditions is one of its strengths.

The conservative answer

The objection is not to the content of the child-welfare standards. It is to who set the rule and how.

One. Congress did not write this. The Constitution assigns the power to "establish an uniform Rule of Naturalization" to Congress in Article I, Section 8, Clause 4, and the power to make all laws necessary to carry the powers of the government into execution in Clause 18. Detention policy for foreign nationals is the subject of acts of Congress, and Congress has legislated on it at length. The fine-grained rule about how long a child may be held was made by a settlement and a judge's interpretation, not by a vote of the people's representatives.

Two. A consent decree is a poor vehicle for a policy that must change with conditions. A statute can be amended when the facts change. A settlement is a contract that binds the government for as long as the court says it does, and the executive branch that signed it in 1997 bound every future president to the terms. When the border changed from a trickle of unaccompanied teenagers to large numbers of family units, the rule could not adapt, because it was not in the hands of anyone who could change it. The only way out was litigation.

Three. The question the Supreme Court actually decided has been inverted. The Court in 1993 upheld the government's discretion in a narrow case. Since then, that discretion has been steadily reduced by an agreement whose scope was expanded by a court far beyond what the 1993 decision required. It is not a stretch to say the government won the case and lost the policy.

Four. A statute could do everything the Settlement does and more. Congress could write into law the very standards that decent people support: clean facilities, medical care, schooling, licensed family residential centers sized for families, a limit on how long a child may be held in a secure setting. It could do so while also authorizing the detention of a family together for the time needed to decide the claim. Written by Congress, such a rule would be accountable to voters and amendable by them. This is the reform that serious people of both parties have proposed repeatedly, and it has not passed.

Five. The cost of congressional inaction is paid by the children. A system that releases families quickly into the interior and leaves their claims to be decided years later is not obviously humane to those with real claims, who wait, nor to those with weak ones, who are encouraged to try. A well-written statute could fix the pace.

A related example of the same pattern, a policy shaped by a ruling no legislature endorsed, is in Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made. And the larger question of who gets to make binding rules in the executive branch is the subject of INS v. Chadha Began as One Man's Deportation and Ended the Legislative Veto, where the Court addressed the relationship between Congress and the immigration agencies directly.

The founding question

Why does it matter whether a rule is written by Congress or by a settlement? Because of what James Madison wrote in Federalist No. 47, that the accumulation of all powers, legislative, executive and judiciary, in the same hands may be pronounced the very definition of tyranny. A rule made by the executive and a court, between themselves, without the legislature, is a small example of that accumulation, even when the motives are good. Self-government means that the rules governing the country's borders and the care of children in its custody can be argued about, voted on, and changed by the people. A decision that cannot be changed by the voters is a decision the voters did not make.

The case in brief

1. In Reno v. Flores (1993), the Supreme Court, in an opinion by Justice Scalia, held seven to two that the INS could release detained children to relatives and guardians rather than any willing adult, and that the Constitution did not create a fundamental right to release.
2. The 1997 Flores Settlement Agreement set standards for the care and release of children in custody, and was meant to end after final implementing regulations.
3. In 2015 the district court extended the Agreement to children traveling with parents, the Ninth Circuit in 2016 affirmed that but not a right of release for the parents, and the resulting practice of releasing families within about twenty days has created an incentive problem.
4. The right answer is not to abandon the child-welfare standards but to enact them in statute, so Congress, and the voters behind it, own the rule.
5. A consent decree is a poor substitute for a law, and a policy shaped by one court for decades is a policy no one voted for.

What you can do: look up the Flores Settlement Agreement text, which is public, read its section on release and facility standards, and then ask your representative through the page for your representatives whether Congress will write those standards into law.