MARY LOUISE KELLY, HOST:
A Trump administration policy of zero tolerance for people who cross the border illegally has been formally in effect for about a month now. As part of that policy, children are being separated from their parents at the border. That has drawn intense criticism from many quarters, including from the American Academy of Pediatrics and the U.S. Conference of Catholic Bishops. This morning, President Trump tweeted that family separation is, quote, "the fault of bad legislation passed by Democrats."
Well, I put that remark to Senator Catherine Cortez Masto, Democrat of Nevada. She's also a former prosecutor and former state attorney general. I asked her, is the president right? Is bad legislation to blame?
CATHERINE CORTEZ MASTO: That's not the point here. The point is this administration has discretion to do the right thing. They have the discretion. And they have chosen to go down this path of zero tolerance. And at the end of the day, the question is, what happens to those over 10,000 - there's 10,773 kids in detention. Some of them are toddlers, a year old, 18 months old. And what happens to those kids? This administration cannot hide behind the fact that Congress hasn't done anything if there is harm done to those kids. The discretion lies with this administration to do something that's in the best interest of these kids. That's who we are as a country.
M. KELLY: You're saying that the Trump administration has discretion in terms of how they interpret executive law.
MASTO: How they interpret - the agencies have discretion in how they interpret it. We have in this country given that authority to agencies who care for children. It's our child welfare system. The states have that discretion. The federal government has that discretion. And we should be working together to figure out what's the best interest of these kids, not using politics to harm them, to promote somebody's self-interest, which in this case I think is the Trump administration.
M. KELLY: If I may press you on this point because you can disagree with the Trump administration policy. You of course don't have any control over what the Trump administration does. But you do have a say in what Congress does. I want to let you respond to something that John Kelly, White House chief of staff, said on NPR recently. He was speaking to this point of his message to Congress on this issue.
(SOUNDBITE OF ARCHIVED BROADCAST)
JOHN KELLY: I just say, look; you make the laws. I execute the laws. I can't pick and choose what laws to enforce. I should be thrown out of the job if I do that. Just do your job. Fix the problem. Or as I said in some remarks, just shut up and let us do our job.
M. KELLY: Senator, what's your response to that?
MASTO: Same response I had to Secretary Kelly when I talked to him in person - they have discretion. Yes, there is laws that you follow, rightfully so, that are mandated either by Congress or your state legislature. But within those laws are the discretion for those agencies to utilize. They have taken the position they have no discretion whatsoever, and that is false.
M. KELLY: I hear your argument. You're saying that the Trump administration has leeway in terms of how they interpret existing law. The Trump administration does not sound inclined to see it that way. They have announced what their policy is. It's zero tolerance. They're forging ahead. So what is your next play?
MASTO: Well, that's the point, is that this administration is continuing to play politics with people's lives. And for my purposes and my colleagues, it is about the best interest of these kids. It is going to these facilities to shine a light on what's happening, to make sure they're being cared for. So that's the legislation that we've introduced - the Keep Families Together Act, the HELP Separated Children Act and the Fair Day in Court for Kids Act. Not only are we trying to keep these families and kids together - they're still going to go through a process. But they should have an advocate, or they should be able to have an attorney if their parents can't be there.
M. KELLY: Do you have Republican support for some of these moves you would like to see passed in Congress to address the issue?
MASTO: Yes, I think there are and know there are some of my colleagues on the Senate side - I can't speak for the House. But I will tell you I know that some of my colleagues have the same concerns about the best interests of these children and doing the right thing by that. And at the end of the day, the legislation that is introduced we will continue to talk with our colleagues about trying to address this issue. But it would sure be nice to have an administration and federal agencies working with us and utilizing their discretion in the meantime to figure out how we can work together to address this.
M. KELLY: Nevada Democrat Catherine Cortez Masto - Senator, thank you.
MASTO: Thank you.
M. KELLY: And elsewhere on the program we hear from a Justice Department spokesman who argues the Trump administration does not have discretion in its interpretation of current immigration law. Transcript provided by NPR, Copyright NPR.
