Now that President Trump has issued an executive order that may perhaps end his administration’s policy of family separation, there are still many outstanding questions: What happens to new families entering the United States? Will there be a Separation 2.0, just like there was a Travel Ban 2.0? And most distressingly, what happens to the children who have already been separated from their parents?
While there aren’t clear answers to these questions, there are some clear answers about the legal rights of those parents seeking to reunite with their children. This policy was unconstitutional, and the parents can seek damages and injunctive relief, meaning a court can block a new separation policy and order the federal government to move heaven and earth to reunite these families. Trump officials had emphasized zero tolerance and deterrence to rationalize this brutal policy. Now it is time for courts to have zero tolerance for this administration’s constitutional violations and to award damages to deter future violations.
First of all, the 14th Amendment applies to every “person,” not just citizens: “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court made that clear in 2001’s Zadvydas v. Davis, when it ruled that an alien’s detention would be considered illegal if it violated the Constitution.
Removing children from parents without due process is a constitutional violation under two Supreme Court cases: 1971’s Stanley v. Illinois and 1982’s Santosky v. Kramer. In both cases, the court held that parents have a constitutional right to the care and custody of their children under the 14th Amendment. This includes the right to due process if children are removed from their care.
Stanley centered on a man, Peter Stanley, who had been deprived of parental rights to his three children on the grounds that he was an unwed father and therefore unfit. The Supreme Court reversed the lower court’s ruling, holding that the father was entitled to a hearing on his fitness as a parent before his children could be taken from him. Moreover, the Supreme Court held, the state may not presume that a particular class of parents, such as unwed fathers, is unfit. Parental fitness must be established on the basis of individualized proof.
In Santosky, the Supreme Court considered the standard of proof required before parents could be deprived of the right to the care and custody of their children. The court held that the fundamental liberty interest of natural parents in the care and custody and management of their children, as protected by the 14th Amendment, does not evaporate simply because they have not been model parents or because they have lost temporary custody of their children to the state. For the separation to be more than temporary, the government must prove, by clear and convincing evidence, that the risk to a child of abuse or neglect in the parent’s care outweighs a parent’s right to care for his or her own child.
Parents thus do not lose their rights to due process under the 14th Amendment because they have been jailed or arrested. Unless she is declared unfit in a fair hearing, a parent who is arrested has the right to designate a caretaker or appoint a guardian. Federal laws governing funding for adoptions provide that if a child is in foster care for 15 of the past 22 months because of parental incarceration, the state can petition for parental rights to be terminated so the child can be freed for adoption. This is done in a court of law, following the law and procedures for fundamental fairness. The Trump administration did not follow these processes in rolling out its child-separation policy.
There is a fundamental problem with the Trump administration labeling people “criminals” before any sort of adjudication. Separation of powers forbids law enforcement from making determinations of guilt. Therefore, any attempt to punish people for a crime prior to adjudication violates the separation-of-powers doctrine and due process.
But even if parents and children are guilty of misdemeanors, the Eighth Amendment prohibits the infliction of “cruel and unusual punishment,” and it too applies to all “persons.” Trump administration officials have emphasized that the policy of family separation is a punishment designed as a deterrent. But the “crime” of illegal entry is a nonviolent misdemeanor. The administration decided that mere arrest for that misdemeanor was cause for family separation with a significant chance of no reunification.
The Supreme Court has held repeatedly that disproportionate punishments violate the Eighth Amendment. In 1983, the court held that the standard for proportionality is: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction … and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” The harshness of family separation is obviously more grave than the misdemeanor of illegal entry and flagrantly more severe than the punishment administered for other kinds of trespass or administered by past administrations.
The government can sometimes justify such policies despite constitutional concerns, but only if there is a “compelling state interest” and if the policy is “narrowly tailored.” The practice of past administrations—which used GPS-monitoring bracelets instead of detention—showed a less restrictive alternative, one that still allowed the federal government to enforce the law as asylum claims were processed.
There is a significant state interest in border security, but if Congress made illegal entry only a misdemeanor, it would tell us that state interest isn’t sufficiently compelling to mandate any kind of harsh punishment. Moreover, it’s not clear that many of these entries should be considered “illegal,” as asylum-seekers initially tried to follow the law by entering at proper ports of entry but were refused or, due to inadequate staffing, were stuck waiting at the border without food, water, or shelter. Necessity is a defense in criminal law, especially in the context of minor crimes.
When the government violates constitutional rights, the Supreme Court has recognized that compensation can be a remedy for damages. But money is not going to make these families whole, and it is not what these parents are seeking. Courts have the power to issue injunctions ordering the Department of Homeland Security and the Department of Justice to reunite these families. The Trump administration violated the parents’ fundamental rights to care for their children, and violated the children’s fundamental rights too.
John Kelly and Jeff Sessions were wrong to believe that the government’s child-separation policy would be an effective deterrent: Family separation might still be a risk worth taking when a family faces human rights abuses and murder in Central America. But deterrence can work against government officials with budgets and reputations to protect. Judges should make sure the Trump administration may not try this again by other means and must commit every available resource to remedying their harms and undoing the damage they’ve caused to these families.