Under the agreement, the government also agreed to quickly release the detained children. To get around Flores and stop adults traveling with children, the Trump administration separated families at the border. When that policy sparked immense backlash, the administration produced regulations to replace Flores, but a federal judge ultimately rejected that effort.
Despite the Trump administration’s antipathy to the deal, he complied with Flores’ food and water requirements. Inspector general reports in 2018, 2019 and 2020 found that every Border Patrol facility investigators visited had baby formula available. A Customs and Border Protection news release in 2019 also noted that the facility provided formula.
Congress itself has explicitly cited infant formula in Customs and Border Protection funding legislation. For example, lawmakers gave the agency $40.2 million in 2019 for “essential items like food, infant formula, and diapers.”
Like most government agencies, Customs and Border Protection buys supplies in bulk, often months or years in advance. For example, the agency awarded a multi-million dollar contract to a food distributor in 2015 for five years of meals for migrant children detained in the Rio Grande Valley sector.
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Customs and Border Protection did not respond to questions about its formula acquisition process. But the agency said in a statement that “ensuring that migrants, including children and infants, in our custody have their basic needs met is in line with this administration’s commitment to ensuring safe, orderly and humane processes at our border.” . The agency, the statement says, “complies with all applicable regulations for the purchase of products used at CBP facilities.”
Steven L. Schooner, a professor of government procurement law at George Washington University, was skeptical that the agency’s purchases would have any effect on the current supply of baby formula.
“I am extremely confident that any volume of formula DHS/CBP purchases is statistically equivalent to zero in terms of market share,” he wrote in an email, referring to the agency and the Department of Homeland Security. “In fact, I would be surprised if the government bought any significant volume.”