Merkley, Durbin, Peters Lead Amicus Brief Urging Circuit Court to Affirm the Critical Protections of Minors in Immigration Detention

Merkley, Durbin, Peters Lead Amicus Brief Urging Circuit Court to Affirm the Critical Protections of Minors in Immigration Detention

WASHINGTON, D.C. - Today, U.S. Senator Jeff Merkley (D-OR), Ranking Member of the Senate Budget Committee, Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and Gary Peters (D-MI), Ranking Member of the Senate Homeland Security & Governmental Affairs Committee led a group of 23 Senators in filing an amicus brief to the Ninth Circuit Court of Appeals urging the Court to uphold the 1997 Flores Settlement Agreement, which sets critical minimum standards for children in immigration detention and continues to be the single most effective protection for detained noncitizen children.

Merkley, Durbin, and Peters are filing the amicus brief in the Ninth Circuit case, Flores v. Bondi, where the opponents claim that the detention funding in the Republican's "One, Big Beautiful Bill Act" overrode the protections provided in the 1997 Flores Settlement Agreement. The amicus brief rejects the government's baseless claims and explains that the reconciliation process cannot be used for such policy overhauls and that such a policy override would have been stricken from the bill.

The amicus brief states, "Appellants' reliance on the OBBB Act as evidence of changed circumstances rests on a fundamental misunderstanding of the budget reconciliation process and its constraints. Because the bill was enacted through reconciliation, its provisions were limited to budgetary matters-appropriations for detention capacity, not changes to legal standards governing detention. A provision terminating the Settlement would be a major substantive policy change that could not have survived the reconciliation process. Accordingly, the OBBB Act cannot constitute a changed circumstance warranting termination of the Settlement.

"Appellants argue that by appropriating funds for family residential centers, Congress expressed approval of family detention. But Section 90003 did not authorize any new program or establish any new directive with respect to detention-it appropriated money for detention capacity already authorized by law. Courts should not infer that an appropriation implicitly repeals substantive law.

"The distinction between appropriating funds and amending substantive law matters enormously in the reconciliation context. Congress appropriated $45 billion for detention capacity, including family residential centers. But this appropriation does not supersede whatever legal standards otherwise govern such detention. Accordingly, the OBBB Act's appropriation for detention capacity does not authorize detention of children in violation of the Flores Settlement, eliminate licensing requirements for facilities, or repeal the other substantive protections secured by the Settlement. Congress regularly appropriates funds for activities that remain subject to independent legal requirements. Appropriating money for federal construction projects does not exempt those projects from environmental review. Appropriating money to expand the federal workforce does not displace existing collective bargaining agreements. And appropriating money for detention does not eliminate the legal standards governing how that detention must be conducted-including the Settlement's requirements for the treatment of children," the lawmakers continued.

In addition to Merkley, Durbin, and Peters, the amicus brief was signed by U.S. Senators Michael Bennet (D-CO), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Cathrine Cortez Masto (D-NV), Tammy Duckworth (D-IL), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Tim Kaine (D-VA), Amy Klobuchar (D-MN), Ben Ray Lujan (D-NM), Ed Markey (D-MA), Chris Murphy (D-CT), Alex Padilla (D-CA), Jack Reed (D-RI), Jacky Rosen (D-NV), Bernie Sanders (I-VT), Adam Schiff (D-CA), Chuck Schumer (D-NY), Tina Smith (D-MN), Chris Van Hollen (D-MD), Elizabeth Warren (D-MA), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR).

The full amicus brief the lawmakers filed to the Ninth Circuit can be found HERE.

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