By Andrew Cuomo

The current border immigration debacle is even worse than it appears to be, and that is saying something.

Governmentally, the Trump administration ‎either incompetently or diabolically created a currently unsolvable riddle. The President’s dual mantra of “tough on the border and not separating families” is presently unobtainable for him.

If he detains the family, the children must be separated by the dictates of the long-held federal courts’ Flores consent decree, which mandates the length of time and conditions under which children can be held in detention facilities. In short, they may not be held in detention centers with their parents for longer than 20 days. This situation was exploded on April 7 when Attorney General Jeff Sessions went to the “zero tolerance” arrest policy, forcing child separation and an unprepared Department of Health and Human Services to shuffle children all over the country.

The Flores decree is also why the President’s Executive Order creating "family detention centers" to unite children is a scam. The executive order was not the “reversal” the press heralded. It was a political pirouette. It was not a 180-degree turn, it was a 360-degree turn in which he ended where he started. The President appeared sympathetic but maintained his position.

The executive order had two little-noticed caveats. It said "to the extent permitted by law,” which it is not. And it said Sessions should renegotiate the Flores decree to allow the executive order to be implemented, which has virtually no chance of success. The federal government has tried to renegotiate Flores before and failed. Even the plan of 20,000 children on Department of Defense bases was a scam because it too violates the Flores decree. In short, none of the President’s proposals are viable.

Meanwhile more people are arriving at the border every day, making the problem worse.

So what's next? The President cannot solve the problem and he knows it. Only Congress can solve it by passing a law that specifically overrides the Flores decree. They will need Democrats to agree, which is highly unlikely (I hope). The law would either need to allow family detention centers akin to the President’s 20,000-capacity DOD camps (which would be a human rights atrocity not seen since the World War II Japanese internment camps), or stop arrivals by building the President’s wall (I'm sure the President’s preferred option). The third option is a supervised family-monitoring program such as those with legal counsels or American family custody programs, which are humane and proven to be effective (probably the Democrats’ preferred option).
 
Any new immigration policy along the President’s lines would require new legislation. Interesting, and perhaps telling, was the President’s statement on Thursday that the Republicans shouldn’t waste time on the immigration issue until after November. The statement made two points. One, he needs more Republicans in Congress to pass his preferred options, and second, it signals that he intends to keep this issue alive through November. With this administration, one must wonder that maybe this was not an unanticipated blunder, but a diabolical plan to continue the polarization of the American people over the immigration issue that helped elect the President in the first place and to inject intensity into the Republican base that is now lacking.

Either motivation is revolting. Politics aside, it means there is no end in sight and these children will be left to languish. The trauma is already inflicted and maybe lifelong. More children will be caught in Trump’s trap and added to the list until a new policy is decided by Congress.

HHS has placed these children in foster care programs with no coordination with the states. Ironically, the states are responsible to run and manage these foster care facilities,and not only was the placement done without state knowledge, but the individual programs are under a federal gag order not to tell the states. How can a state regulate a program if it doesn’t know who is in it? The children require services and interventions that many of these programs may not all be equipped or prepared to provide given the volume of children separated from their families. At a minimum, HHS should bring the states into the process to provide mental health, counseling, legal, education and reunification services to all of the affected children.

The children are political pawns. It is an American disgrace. For HHS not to allow states to provide resources takes this federal action to a new and disgusting level violating humanity and American values. Americans want to help these children. Let them.

Andrew Cuomo is the governor of New York.