Family Separation Is Morally Gross — and Unconstitutional

Which legitimate government interest is furthered by traumatizing toddlers?

Recognize that quote? From the late famed holocaust survivor, Elie Wiesel.

It started six weeks ago, when US Attorney General Jeff Sessions announced that the Trump administration would adopt a zero-tolerance policy toward anyone crossing the border into the US. Anyone caught entering the country by Border Patrol would now be prosecuted for the misdemeanor of illegal entry. The wouldn’t just cover migrants; people seeking asylum from violence in their home countries will be prosecuted as well. At the risk of sarcasm, if you’ve caught any news on this, or read the President’s Twitter feed, you’ve noticed that all this prosecution has led to thousands of children being separated from their parents. Children, locked into pens, alone, with no idea where their families are. Horrifying. It violates all sense of morality and civil decency. It also likely violates the law.

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I’m not about to argue that Sessions and the Justice Department are flagrantly tossing the rule-book and the US Constitution out the window. I’m not even saying that this is the first administration to be caught placing migrant children in unacceptable living conditions. In fact, Sessions has been quite clear that he believes he is following the law. When an adult crosses the border and is referred for prosecution, any child with that adult is turned over to the US Department of Health and Human Services, which then finds the child a sponsor to take care of them until their parents’ case is resolved. It is true that this much is the law. It is also true that if all adults are being prosecuted, this naturally will lead to a lot of children being turned over HHS. Sessions thinks the Bible justifies family separation, but we’re talking about a guy who thinks good Christians should turn away refugees.

What is not true is any law requiring the US to prosecute every border-crosser. Nor any law requiring Border Patrol to separate all children accompanying their border-crossing parents. The policy decision to universally prosecute, and thus to necessitate mass family separation, is made at the whim of the very un-Christian Trump administration. Family separation isn’t some regrettable byproduct of, or painful loophole in, the law. Administration officials, including Chief of Staff John Kelly, have admitted that family separation is quite intentional, aimed at deterring border-crossing (with or without children) in the first place.

This is sick.

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What the Trump administration does not want to acknowledge is that these children and their parents have Constitutional rights, and that these kinds of intentionally cruel policies violate them. The American Civil Liberties Union, the American Bar Association and federal judges all agree. This is because the Fifth Amendment states that “No person shall be deprived … of life, liberty, or property, without due process of law.” The key word here is “person,” which is different from “citizen.” In 2001, the US Supreme Court held that under the Fifth Amendment, the term “person” includes illegal aliens. Even those who cross the border illegally are entitled to certain forms of due process.

What is due process in this case? Typically, it means two things. First, the government will enforce its laws with a sense of fair play and decency, and won’t violate a person’s rights unless doing so furthers a legitimate state interest. Second, if government is going to violate a person’s rights, they will provide them with a hearing before doing so.

US courts have been very clear that a parent’s right to have care, custody and control of their child is one of the oldest fundamental rights recognized in this country. This is why even allegedly abusive parents get a hearing before they lose custody of their children.

Border-crossers, therefore, have rights protected by the Constitution, and custody of a child is one of them. This is the right being violated whenever Border Patrol takes a child from their parent(s) without a hearing. A clear-cut Constitutional violation, right? Well, just for one little wrinkle: Federal courts have also ruled that government can interfere with a parent’s custody of a child without violating the parent’s Constitutional rights if such interference is not intentional, only the collateral result of enforcing laws or policies. This is likely where Sessions would argue that his policy is not intentional — it’s a byproduct of prosecuting illegal border crossers.

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Yet, by their own admission, administration officials have admitted that family separations are intentional. Which takes the current policy firmly out of the realm of the “collateral result” exception and back to parental rights, reinserting the argument for violation of due process back into the conversation. After all, how does ripping a crying child from the arms its mother signify fair play and decency? Which legitimate government interest is furthered by traumatizing toddlers? These parents deserve a hearing where the government should prove why their children should not remain with them.

This issue has never reached the US Supreme Court but it is working its way through the lower federal courts and things are off to a hopeful start. As has too frequently become the case in recent years, the court system may be this nation’s only hope for justice. The fate of these children hang in the balance.