Children’s unique vulnerability in the eyes of the law has long been recognized in United States jurisprudence. Legal scholars have established various constructs of how children’s vulnerability squares with the Constitution, including their greater susceptibility to harm to their well-being, powerlessness due to their subordination to adult authority, and dependence on others to meet their basic needs. As such, the law has accounted for the “peculiar vulnerability of children” in legal protections.

However, legal rights fail to prevail and mean little in practice when the federal government can continue to subject the most vulnerable in society to inhumane conditions. Since family detention centers reopened in spring 2025, more than 1700 children entered federal custody by January 2026. According to the U.S. Department of Health and Human Services (HHS), as of July 21, 2026, 1870 unaccompanied children are under the department’s supervision, in limbo until their cases are heard.

Although legal precedent has long recognized children’s unique vulnerability, Congress has failed to enact a comprehensive statutory framework to protect immigrant children in federal detention. Instead, the most important safeguards for immigrant children, particularly unaccompanied children, rest on a single legal settlement and regulations that can be challenged—or worse, reversed.

The landmark 1997 Flores Settlement established nationwide minimum standards regarding the treatment, placement, and release of children in immigrant custody. Immigration advocacy organizations secured the Flores Settlement after settling the 1987 class action lawsuit Flores v. Reno. The agreement first applied to unaccompanied children, or by legal definition, children under the age of 18 with no lawful immigration status in the United States, and with no parent or legal guardian to provide care. In July 2016, the U.S. Court of Appeals for the Ninth Circuit ruled in Flores v. Lynch that the 1997 settlement extends to all migrant children, not just unaccompanied minors.

The Flores Agreement is one of the only federal protections that ensures basic minimum standards for immigrant children in detention. The decree guarantees that children must not be held for prolonged or indefinite periods in immigration detention facilities, and, when they are held, they must be provided with safe conditions and basic necessities, including access to water, clothing, age-appropriate food, and showers. The agreement also mandates that the government release children as quickly as possible to a parent, family member, or available sponsor. Further, children cannot be detained in facilities meant for adults and unequipped to care for children. For federal detention centers that are meant to hold both children and their parents, federal courts have interpreted Flores to require that children be detained for no more than 20 days.

Now, the Flores Agreement is under attack. The current Trump administration restarted family detention in early 2025, detaining children alongside their parents in ICE detention centers. On June 2nd, 2026, the Trump administration tried to terminate the Flores agreement when arguing before the Ninth Circuit. While the Trump administration attempts to battle long-settled legal standards in court, it has already defied those standards in practice. 

At the South Texas Family Residential Treatment Center in Dilley, Texas, these standards are completely disregarded. The organization Children’s Rights reports accounts from children held in the detention center, including rotten food, unsanitary drinking water, disease outbreaks, and insufficient medical care. The average time in custody is nearly 60 days, with some children held for more than 90 days, far exceeding the 20-day standard set by courts. The center claims that there are no violations, and its operations are in compliance with Flores.

Further, the ORR has adopted specific changes driving indefinite detention of unaccompanied children. Children can spend more than 190 days in ORR custody, experiencing significant psychological distress. According to Kids in Need of Defense, more than 2,000 unaccompanied children are now indefinitely detained in federally contracted programs that, in many cases, are meant to only be temporary.

The government has aimed to eliminate some of the only federal protections explicitly safeguarding and defending the rights of immigrant children, particularly for unaccompanied minors. This legal battle also arises as the federal government cancels millions of dollars in contracts with legal aid organizations that serve unaccompanied children. 26,000 migrant children receive legal counsel through federal funding. These decisions deny the most vulnerable legal representation and basic needs in the United States.

Attacking immigrants has long been the legacy of a nation that institutionalized exclusion, from counting individuals as less than one person to leveraging political representation, to enacting restrictive, nationality-based immigration laws. The Flores Agreement must not stand on its own. Applicable state laws and other regulations, while offering some level of protection, still leave children vulnerable to harsh treatment. Congress has yet to pass meaningful legislation to solidify legal protection for immigrant children and unaccompanied minors detained in detention facilities. Recent bills, such as H.R. 9270, introduced on June 11, 2026, the Dignity and Due Process for Children Act, must garner sufficient support to become law and guard against the immoral treatment of children. Further, it’s of the utmost importance to materially support the continued child legal advocacy services for unaccompanied children, so every child continues to have the support they need to receive their basic human rights. Above all, the United States immigration system requires serious reform. Expanding pathways to citizenship, ending federal contracts with private, for-profit companies that operate immigrant detention, and abolishing Immigration and Customs Enforcement (ICE) would address some of the core systemic issues pertaining to immigration.

No human, no child, should be subjected to inhumane punishment. The degrading treatment of children whose “crime” in the eyes of the government is their very existence on American soil transgresses our most fundamental beliefs about the rights of a child. Those principles of vulnerability lose their meaning if the government refuses to protect children. Instead, if the government is willing to put a child in these conditions, in a prison where their basic needs are denied, even those separated from their parents or legal guardians, simply for a civil violation, the government has already determined that its agenda supersedes moral dignity. Unless Congress codifies robust statutory safeguards and preserves access to legal representation, the rights recognized in Flores will remain vulnerable.

Photo Credit: Jerry Clayton / Texas Public Radio