Trump Found a New Way to Do Family Separation Without the Backlash

Jurisprudence By Enter your email to receive alerts for this author. Sign in or create an account to better manage your email preferences. Unsubscribe from email alerts Are you sure you want to unsubscribe from email alerts for Shirin Ali? Oct 08, 20265:40 AM Photo illustration by Slate. Photos by Spencer Platt/Getty Images and Getty Images Plus. This is Executive Dysfunction, a newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Click here to receive it in your inbox each week. Children are almost always treated with special deference in American law, because lawmakers understand and respect the significance of adolescence and the necessity of parental guidance. President Donald Trump has upended this long-standing, universal understanding in a particularly insidious way during his second term. For the first time in our nation’s history, tens of thousands of children are being separated from their parents, who, at the hands of Immigration and Customs Enforcement, are being violently arrested inside of the country, then detained, and quickly deported without their kids. These children are essentially left to fend for themselves or are placed with an unknown caregiver, which in some cases has led to horrific endings. Although this may sound awfully similar to Trump’s 2018 “zero-tolerance” policy, it is worse, because there is no explicit family separation policy this time around, making it harder to challenge in court. Instead, family separation has become just another devastating consequence of the president’s mass deportation agenda. Under past administrations, ICE policy held that any detainees who were parents should be reunited with their children before being deported, or agents must get confirmation that there is a designated caregiver in place for their children in the parents’ absence. Last year, upon Trump returning to the White House, ICE revised this policy to make it only applicable “when operationally feasible,” which gave agents all the leeway they needed to ignore the historical guidance in order to prioritize mass deportations. “This loosening of guidelines, combined with scaled-up immigration enforcement, has resulted in the detention of thousands of parents, many of whose minor children are U.S. citizens,” a recent analysis by the Migration Policy Institute concluded. Under Trump 2.0, the Department of Homeland Security no longer provides reliable data on its immigration enforcement, but the Brookings Institution estimates that as of April 2026 about 205,000 children have likely experienced a parental detention since Trump began his second term and about 145,000 of these children are U.S. citizens. Mothers in particular seem to be affected, with ProPublica finding that the Trump administration is deporting about four times as many moms of U.S. citizen children per day as the Biden administration did, most of whom have minor or no criminal histories at all. Stories of these children are playing out across the country, like in Minnesota, where three children have been separated from their father for nearly 10 months after he was yanked out of his car and violently arrested on his way to work. And in Alabama, where one woman has been caring for an old co-worker’s 2-year-old for nearly a year since ICE picked up the baby’s mother while she was on a grocery run. In Illinois, a college senior found himself the sole breadwinner of his family after ICE arrested and detained his uncle. Three sisters in San Francisco were among a lucky few who were reunited with their mother after she was detained for almost a year, leaving the eldest sibling to take care of the household while juggling college classes and navigating a complicated immigration system for her mother. Then there are the children who ICE arrests with one or both of their parents. Although the U.S. government has historically allowed families to remain in detention together, the Trump administration has quietly been separating children by giving their parents false promises that they’ll be able to stay in touch with them. In reality, as detailed by Mother Jones, oftentimes children are sent to the Office of Refugee Resettlement and reclassified as unaccompanied minors—they are not; the U.S. government knows their parents are in detention—and sent off to live with foster parents. ORR does not track these types of cases, so it’s unclear how many children are being reclassified, but Mother Jones estimated they now make up a “huge chunk” of ORR’s caseload. Under normal circumstances, unaccompanied minors are defined as children who arrive at a U.S. border alone, with no parent or guardian. Regardless of how the Trump administration chooses to manipulate immigration law, the National Immigration Law Center says parents and legal guardians who are detained by ICE have a legal right to make decisions about their minor child’s care. They are also allowed to see their children while in detention, upon written request, whether that’s in person or over a video or phone call. And if a parent faces deportation, they also have a legal right to make decisions about what happens to their children, which usually comes down to either allowing the child to remain in the U.S., regardless of the child’s immigration status, or to be deported alongside the parent. All of these decisions are supposed to happen with a lawyer, but even this is no longer happening, due to financial constraints, the administration’s attacks on legal aid for minors, and its extreme hostility toward immigrants, leaving parents with little to no recourse when ICE does not follow protocol. Children do not get to choose their parents’ immigration status, yet their families are being torn apart over it. The consequences are clear, with studies showing that children who lose a parent to sudden, forced deportation experience anxiety, anger, aggression, isolation, and depression. It also often leads to housing instability, academic withdrawal, and family dissolution. Yet, the president is unbothered by this; in fact, he’s doubled down on efforts to eliminate immigrant children from the U.S. altogether, evidenced by his birthright citizenship executive order. Despite the Supreme Court categorically rejecting it earlier this year, Trump has since introduced yet another executive order targeting birthright citizenship. The Trump administration’s assault on immigrants has been cruel at every turn, but what it’s doing to immigrant children could be its worst act by far. We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member! Elsewhere in Jurisprudence In this week’s episode of Amicus, Dahlia Lithwick discusses the botched execution of Tennessee inmate Christa Pike, which the Supreme Court allowed to move forward in a last-minute stay with zero explanation. Then, Sen. Sheldon Whitehouse of Rhode Island joins to discuss SCOTUS’s new term and the climate case Suncor v. Boulder.In the Amicus bonus episode, Dahlia talks about the latest attack on abortion rights with Jay Willis, the editor in chief of Balls and Strikes. Blue states are fighting to protect their abortion laws as red states claim those laws violate their legal authority, with the Supreme Court yet to declare whether it will take up their case. Also on the agenda is the president’s third-country removal policy and the growing pains of SCOTUSblog.The midterm elections are right around the corner, so what could Trump do to try to subvert U.S. democracy? Richard Hasen, professor of law at UCLA, outlines five levers the president could pull and how states, courts, and the people could respond.On Monday, the Supreme Court held oral arguments in Suncor Energy v. Boulder County, and Madiba K. Dennie, attorney and deputy editor at Balls and Strikes, explains what went down. As Colorado attempted to argue it should be able to sue oil and gas companies for fueling climate change, conservative Justices Brett Kavanaugh and Amy Coney Barrett seemed to openly worry about the economic prospects of oil and gas companies.LGBTQ+ rights are very much on the Supreme Court’s docket this term, and Hila Keren, professor of law at Southwestern Law School, explains what’s at stake. In International Partners for Ethical Care Inc. v. Ferguson, the focus is on a Washington state law that protects access to safe state-licensed youth shelters and subsidized mental healthcare counseling. In Trump v. Kingdom, the administration is asking to lift an injunction that’s preventing it from implementing policies that deprive trans prisoners of healthcare. Donald Trump Immigration Jurisprudence Kids ICE Executive Dysfunction