Domestic Policy

Trump’s Deliberately Cruel Child Separation Policy

Trump's policy, not the law, separates children from their parents

Once again, Donald Trump is deliberately inflicting pain on the most vulnerable, blaming others, and using innocent children as a bargaining chip to make good on a campaign promise to build a wall to keep out Mexicans and other brown-skinned people.

Sorting out fact from fiction, law from policy, and information from spin in connection with the separation of migrant children from their parents takes some work. But it’s not impossible, and at the end of the day the examination shines a bright light on the mendacity, indecency and even cruelty of the Trump administration and its enablers.

Let’s start with a look at what the Trump administration is doing, and how it differs from the policies and practices employed not only by previous administrations, but also by the Trump administration itself in its first year in office.

Just two months ago, on April 6, 2018, Attorney General Jeff Sessions announced a “zero tolerance” policy on unlawful entry into the United States.  At its core, the policy required criminal prosecution of any person, including parents with children, apprehended attempting to cross the border illegally.

Under previous administrations, and during the first year of the Trump administration, parents generally were not prosecuted criminally if their only alleged crime was entering the country illegally.  In the absence of suspicion that a child was being trafficked, or that the claimed parent was not in fact a real parent, or other criminal activity, the government usually relied on civil remedies to remove families from the United States. Children were not separated from their parents merely because they were suspected of entering the United States illegally.

During the last two months, supposedly in furtherance of the Trump-Sessions Zero Tolerance policy, some 2000 children, many just toddlers or even pre-toddlers, have been forcibly separated from their parents at the border.  The ones we know about are being kept in chain-link cages constructed within an abandoned Walmart.  Because they are being provided food, water and toilets – praise the Lord! – the government insists that they are being treated humanely, despite the confusion, pain and utter trauma of being separated from their parents and thrown into cramped detention centers that they cannot even begin to understand.

The number of warehoused children could easily expand to 20,000 over the course of the summer.

Trump and his apologists have thrown out a mess of false and inconsistent justifications in an attempt to explain this moral outrage. Ironically, they started by telling a version of the truth – that the policy of separating young children from their parents was implemented deliberately to send a message of deterrence to migrant families attempting to enter the United States without documentation. That’s right – the plan was to inflict so much pain on innocent, confused, and bereft migrant children that others would be deterred from entering our country.

Chief of Staff John Kelly, in a rare moment of candor, told CNN’s Wolf Blitzer just that in March.  Kelly admitted that the Department of Homeland Security was considering separating children from their families “in order to deter more movement” across the border.

And that is exactly what Trump and Sessions decided to do a month later.  Under the aptly named Zero Tolerance policy, the Trump administration began separating children from their parents.

The jury is still out on whether that policy will deter movement across the border.  So far, two months into it, it hasn’t.

But one thing we know for certain is that the existence of the policy has not deterred the Trump administration from its Orwellian insistence that no such policy exists.

Witness the preposterous lies of Department of Homeland Security Secretary Kirstjen Nielsen. On Sunday evening, Nielsen tweeted out: “We do not have a policy of separating families at the border. Period.” Apparently heedless of John Kelly’s admission that the separation policy was deliberately intended as a deterrent, as well as Jeff Sessions’ defense of the policy as a way to “send a message,” Nielsen feigned umbrage at the very suggestion that the Trump administration would separate children from their parents in order to send a message: “Why would I ever create a policy that purposely does that,” she asked indignantly.

Why indeed.

The answer, according to Trump and his apologists, is that the separation of children from their parents isn’t a policy at all, it’s just the unfortunate byproduct of enforcing laws passed by the United States congress. Because the law requires the government to criminally prosecute people who are suspected of entering the United States illegally, the argument goes, and because the law forbids detaining families together, the government has no choice other than to separate children from their parents.

Rubbish.  Navigating through the legal thicket takes some rigor, but it’s worth the journey.

To begin, there is no law that requires the government to criminally prosecute every person suspected of entering the United States illegally. While illegal entry into the country is indeed illegal, that doesn’t mean that every suspected violation much be prosecuted criminally. The government exercises prosecutorial discretion every day to determine whether violations of law should be prosecuted criminally or civilly, or not at all. That is true whether the alleged crime is perjury, lying to the FBI, securities fraud, improper handling of classified information, illegal immigration, or even homicide.

In other words, the Trump/Sessions Zero Tolerance program is a deliberate policy decision, pure and simple, not a matter of mandatory law enforcement.

Second, even if there were a requirement that all illegal border crossings be prosecuted criminally, there is no law that requires that suspected illegal entrants have their children ripped away from them at the border.

This is where the legal analysis gets a bit complicated, but stick with me.

The Trump administration pins its legal argument on the 1997 settlement of a class action that challenged the constitutionality of the Reagan administration’s practices regarding the detention and release of unaccompanied minors taken into the custody of the Immigration and Naturalization Service (INS). The so-called Flores Settlement, named after one of the plaintiffs in the lawsuit, set a nationwide policy for the detention, release, and treatment of minors in the custody of the INS. It required immigration officials to “place each detained minor in the least restrictive setting appropriate” — for example, providing food, water and toilets. The government also agreed to release immigrant children “without unnecessary delay” under an established preference ranking for custody.

In 2016, the Ninth Circuit Court of Appeals held that the Flores settlement applies to both accompanied and unaccompanied minors, but does not require the release of accompanying parents.

The Trump team is now arguing that since the 9th Circuit’s Flores decision requires prompt release of the children, but not the parents, they have only two options: (1) separate children from parents who are charged with illegal entry, or (2) let everybody go, parents and children alike, in the vain hope that the parents will show up for their trials.

But this is a false choice.  Aside from the fact that no law required the parents to be arrested and criminally charged in the first place, no law requires that their children be ripped away from them at the border.  Even if it were imperative to keep the parent in custody, minor children could still be kept with their fathers and mothers while authorities endeavor to place them with other parents, family members, or licensed programs.  If suitable placement cannot be found, the government is required to place the children in the “least restrictive” setting appropriate to their age and special needs.  Might that not be with the parent who accompanied them across the border?

Finally, even if Trump’s false dichotomy were real – if the choice really were either to take children from their parents and warehouse them in cages, on the one hand, or release their parents pending trial, on the other – is that really a difficult moral or policy decision?

Could decent people, with decent values, really believe that it is better to permanently and grievously traumatize innocent children for the rest of their lives than to run the risk that a declined asylum seeker might not show up for trial?

Well, Trump’s people could.

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  1. Thank you, Philip, for your usual intelligent analysis of this shocking ( but not surprising) situation. Congratulations on the site. I am sending it to all my political junky and/or rightly concerned friends,

  2. Certainly nobody (probably even our president whom I despise) believes this heartbreaking family separation issue is how we should treat other human beings. Yet, even though alien illegal border crossing (as opposed to unlawful presence) the first time is only a federal misdemeanor (subsequent crossings by the same person are felonies), it is a federal crime subject to six months’ imprisonment (or a fine up to $250). It is not a civil violation as is unlawful presence. It is a crime. Federal misdemeanors include some very serious criminal offenses. Certainly there is prosecutorial and judicial discretion for all of these.

    I have no idea how illegal border-crossing families might acceptably be able to remain together after being interdicted. If the US treated these families as it did with interned WWII American Japanese families kept intact, this would also be maligned–would it not? Regardless, probably this would be better.

    Lastly, asylum seekers must meet the international law definition of “refugee”; a person must be fearful of persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion. Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

    Even most of us liberals know that people illegally crossing into the United States are primarily economic refugees. These do not quality for US asylum. We simply cannot accept all the world’s poor into this country. Nor can all the other immigrant-embattled nations: Germany, England, Italy, France, Spain, et cetera. It is a hell of a terrible untenable situation for both fleeing immigrants and receiving nations alike. And it is an insoluble situation if the advanced nations (in concert with leaders of the poor nations of the world) refuse to or are financially and politically incapable of reducing constant conflict that deprives people of at least a peaceful opportunity to survive in their native countries.

    [Thank you, Philip, for trying to enlighten your grateful readers with your educated insights.]


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