Jurisprudence

Will President Trump Ignore the Court Order Against His Lawless Family Separation Policy?

The crisis is nowhere near over. Here’s how you can still help.

Protesters at the Tornillo, Texas, child detention facility on Sunday.
Protesters at the Tornillo, Texas, child detention facility on Sunday. Walter M. Shaub Jr.

What is the duty of a citizen? That depends on whether you believe a country is more than a plot of land bounded by borders and walls. The past few weeks in the family separation crisis, which led on Tuesday to a District Court judge in California ordering the Trump administration to cease the practice and immediately reunite separated families, should mark a clarifying moment for the citizens of this country.

Tuesday’s orders from Judge Dana Sabraw in the case of Ms. L. v. ICE are categorical: First, the judge certified as a class nearly all families affected by the child separation practice. Second, and most importantly, the judge ordered family separation halted and parents reunified with children younger than 5 within two weeks and reunified with children older than 5 within 30 days.

This is just an order, though. We have to see how the Trump administration responds to it. Given recent history—the government has been waging a bitter campaign to defend its child separation practice and avoid family reunification—it seems as though this president will try to get away with anything he can. Further, reunification may be nearly impossible in some cases—as the judge noted, there have been reports of parents being deported without their children, and the government has taken many infants who may not even be able to say their parents’ names.

In the midst of this crisis, the congressional majority has wholly abdicated its constitutional responsibility to conduct oversight of the Trump administration; its failure to hold emergency hearings is the point of abject disaster. That these crimes against humanity didn’t prompt Congress to act tells us nothing ever will. Only a dead heart is unstirred by the intentional infliction of suffering on children and babies as a weapon of deterrence.

Ultimately, the burden to ensure that these families are reunited and kept safe falls on the public to pick up where our leaders have failed. What’s needed now is pressure. Continued, sustained public pressure to make sure those in government move heaven and Earth to comply with Judge Sabraw’s order. We’ve all just seen what the president is capable of, so the public needs now more than ever to send a message that we won’t stand for crimes against humanity.

Hundreds of thousands of your fellow citizens will stand up against child separation and family detention this Saturday. The largest rally will be held in Washington, and I hope you’ll join us. If you’re unable to get here, I hope you’ll join one of the 500 other rallies being held simultaneously across the nation that day. This is the moment of crisis when we must fulfill our duty as citizens.

Direct action helps. In ordering an end to these horrific child separations, Judge Sabraw emphasized the public’s active response: “This situation has reached a crisis level. The news media is saturated with stories of immigrant families being separated at the border. People are protesting.” Condemning President Donald Trump’s recent executive order for failing to provide for family reunification, the judge added that, “Public outrage remained at a fever pitch.”

This past weekend, I had the chance to observe firsthand the depth of that outrage and the power of direct action. I bought a last-minute plane ticket and went down to the border, where I joined a group rallying outside the Tornillo, Texas, child internment camp. There I witnessed hundreds of citizens who felt duty bound to stand up against the government’s horrific new child detention practice. The Trump administration has been arresting families that cross the border anywhere other than a port of entry, separating the children indefinitely and detaining them alone. According to the judge in the Ms. L. v. ICE lawsuit, the practice wasn’t constrained to people who committed the misdemeanor offense of entering without border inspection—many lawful asylum-seekers who presented themselves at a port of entry had their children taken according to the affidavits in that lawsuit.

Medical professionals have been decrying the harm inflicted on these children, who range in ages from a few months old to teenagers. In Tuesday’s opinion, Judge Sabraw cited child development experts who warned that “separating children from parents is a highly destabilizing, traumatic experience that has long term consequences on child well-being, safety, and development,” emphasizing risks of severe mental and physical harm, toxic stress and increased vulnerability to exploitation.

In Tornillo, we all felt the heartbreak of being so close and so far from the children. The sterile grounds were steeped in an oppressive atmosphere of mystery. The compound was designed so that, despite the flatness of the desert terrain, the tents were obscured from our view. One guard denied knowing if there were tents on the property. Though he was polite, his response highlighted the crushing impersonality of bureaucracies, telling us the guards were not advised of the activities of “tenant agencies.”

A group of protesters at another site had more success than we did in spotting children. The protesters shared low-quality cellphone photos of little children peering out from a bus transporting them deeper into the bureaucracy. The agencies involved in this catastrophe have not been transparent. Their silence suggests they may have already lost track of the children’s parents, especially the parents who have already been deported without them. In the case of nonverbal babies and toddlers, we have no assurance that the agencies even know their names. For all we know, “Inmate 451” may be the new name of an infant who was ripped from the arms of her crying mother by an agent who didn’t record her name and parentage, or whose records were lost by a clerk at Step 22 of the detention process.

The local immigration activists on the ground are doing everything in their power to ensure that these children are ultimately returned, but they desperately need our help. The organizer of the Tornillo protest I attended was María Teresa Kumar of Voto Latino, and she was supported by a team of local immigration advocates, including Cynthia Pompa, Linda Rivas, and Melissa Lopez.

Pompa told me about her work in El Paso with the American Civil Liberties Union. She showed me a disturbing photo she had taken with her cellphone of a menacing man in a black mask carrying a large gun. The man, who claimed to be a government contractor, approached her on public ground on the U.S. side of the border and told her to leave the area where a border wall was being constructed. Pompa also talked about Juárez, Mexico, a place close to her heart. As she described El Paso’s sister city, I found myself thinking about how close we were sitting to the homes of its residents, our neighbors in every sense of the word. On the way back to the hotel, I could see the colorful lights of an event across the border.

In addition to being attorneys, Rivas is executive director of Las Americas and Lopez is executive director of El Paso’s Diocesan Migrant and Refugee Services. They are currently trying to help the children taken by the administration. Their passion for the work was apparent. Some of us are new to this struggle but not them. They’ve been part of it all along, and they’re in it for the long haul.

I asked Rivas and Lopez about their work. They toil against overwhelming odds with limited funding. The work can take its toll on the good people in this field because there are always losses, but there are wins too. There is also the deep satisfaction of a life devoted to helping people. Lopez told me about a grateful client who, having nothing else to give, presented her with a dollar bill that he had folded into the shape of a heart. Such souvenirs strengthen resilience.

The child separations are different in meaningful ways than what has come before. Defenders of the child separations emphasize problems with the previous administration’s treatment of immigrants, especially its failures when a large number of unaccompanied children crossed the border alone and overwhelmed existing systems. Our immigration system has been bad for some time. There’s no denying that. There is also no denying that things changed drastically for the worse when the Trump administration needlessly imposed a zero-tolerance policy and adopted the brutal practice of turning accompanied minors into unaccompanied minors by arresting their parents for, in most cases, misdemeanors.

The administration has made matters worse by blocking asylum-seekers at the border. This arguably illegal tactic has left many desperate families with three bad choices: turn back and potentially die at the hands of those they are fleeing, face the health risks of sitting out in the hot sun for weeks on end in the hope that the border guards stop blocking them, or cross the border elsewhere and turn themselves over to the authorities on the American side. That third choice triggers Trump’s zero-tolerance policy, which he uses to justify the child separations.

These actions by the administration have artificially produced a humanitarian crisis. The vast federal bureaucracy is unequipped to reunite these children with their parents, and it has reportedly complicated matters by beginning to deport their parents without them. Some of these children may never see their parents again.

Senior government officials have revealed that their real aim is deterrence. In this context, deterrence is a sinister term signifying an intent to inflict enough harm on these families to scare others away. When pressed by CNN’s Kate Bolduan, Sen. Lindsey Graham admitted, “I’m sure that people are going to be less likely to bring their kids to America if they get separated.” Attorney General Jeff Sessions admitted to Fox’s Laura Ingraham that deterrence is one of the goals of the new policy. White House chief of staff John Kelly also revealed to CNN as early as last year and to NPR as recently as last month that one of the goals of such a policy would be deterrence.

At one point, President Trump seemed to signal that funding for his border wall was a condition for negotiations over ending the policy, making hostages of the children. The executive order he issued last week is an incomprehensible mess that doesn’t look like anything a minimally competent lawyer would have drafted. Judge Sabraw on Tuesday himself correctly noted that the executive order is “subject to various qualifications,” that it still “allows the government to separate a migrant parent from his or her child,” and that it “is silent on the issue of reuniting families that have already been separated or will be separated in the future.” It is thus plainly inadequate to end this crisis, the judge ruled. The judge is absolutely correct. The administration has not offered convincing assurances that the separations won’t resume, perhaps in a new form that might somehow skirt his order, nor has the government released even the most rudimentary plan to reunite the families. Instead, it has trafficked in dehumanizing language to villainize these children and their parents, including the words infestation, invaders, illegals, and criminal illegal aliens. The president equates these babies and children with violent gang members. He never mentions that immigrants commit less crime once they’re here than the native-born population.

I wish I could say this atrocity was un-American, but the truth is that America has not always lived up to its ideals. What I can say is that many threads are woven in the great tapestry of America. Just as there are those who would commit atrocities, there are citizens who heed the call of civic duty and stand against them.

Taking a stand can be inconvenient. But the baton has been passed down through generations to us. We are citizens, and stopping these atrocities is our civic duty now.

Walter Shaub is the former director of the U.S. Office of Government Ethics. His remarks do not represent the views of his current employer. More information Saturday’s rallies is available online.