A group of 23 U.S. Senators, led by Senate Democratic Whip Dick Durbin (D-IL), Senator Jeff Merkley (D-OR), and Senator Gary Peters (D-MI), has submitted an amicus brief to the Ninth Circuit Court of Appeals. The brief urges the court to uphold the 1997 Flores Settlement Agreement, which establishes minimum standards for children in immigration detention.
The case, Flores v. Bondi, involves arguments that a provision in the “One, Big Beautiful Bill Act” (OBBB Act) overrides protections set by the Flores Settlement. The Senators’ brief disputes this claim, stating that budget reconciliation processes cannot be used to make such policy changes.
“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,” wrote the Senators.
They further argued: “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 brief concludes: “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.”
Other signatories include 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).
