A judge just sharply rebuked Trump’s cruelty and incompetence
Last night, a federal judge in California issued an injunction blocking the Trump administration from continuing with its policy of separating children from their parents at the border. The ruling also requires the administration to reunite all previously separated children and parents under a tight time frame.
What’s remarkable about this ruling is how scathing a rebuke of the Trump administration’s cruelty, inhumanity and incompetence it delivers. What’s more, for reasons noted below, it could also prevent President Trump’s cruelty, inhumanity and incompetence from hurting more children going forward.
Dana Makoto Sabraw is a federal judge in the United States District Court for the Southern District of California. He joined the court in 2003 after being nominated by President George W. Bush.
The ruling from U.S. District Judge Dana Sabraw enjoins the government from detaining people separate from their minor children, absent evidence that the parents pose a threat to them, and requires the government to reunite all separated children under 5 years old with their parents in 14 days, and all children over 5 in 30 days.
The Trump administration had launched a “zero tolerance” policy of prosecuting all people who cross the border illegally, including asylum seekers, which produced a sharp rise in family separations, as children must be separated from parents undergoing criminal prosecution. The ruling came in response to a lawsuit by the American Civil Liberties Union. Trump has since issued an executive order ending the family separations while vowing to continue holding families and children together indefinitely in immigration detention (as opposed to criminal prosecution).
To get an injunction, plaintiffs must show (among other things) that they will suffer irreparable harm without one and that their underlying legal claim is likely to succeed on the merits. The ruling grants both of these and goes into detail about the policy’s cruel and incompetent execution. It details evidence that for children, separations can be a “highly destabilizing, traumatic experience.” And, remarkably, it notes that legal arguments confirmed that the government apparently had no workable procedure in place for reuniting children with parents once they are released, resulting in some being “orphaned”:
The practice of separating these families was implemented without any effective system or procedure for … tracking the children after they were separated from their parents … and reuniting the parents and children after the parents are returned to immigration custody following the completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees … under the present system migrant children are not accounted for with the same efficiency and accuracy as property.
The ruling concludes that in part because the separations pass a judicial standard in which they “shock the conscience,” the lawsuit is likely to succeed on the merits of its underlying claim, which is that the policy violates constitutional due process rights.
This scathing ruling has direct bearing on what’s next, in two ways.
First, it will block the administration from resuming separations if it wants to. The Trump administration now wants to hold parents and children indefinitely in noncriminal detention — as opposed to criminally prosecuting the parents — but that might run afoul of the 1997 Flores settlement, which requires children to be released in 20 days. The administration has asked the courts to amend it, but that’s unlikely.
Some immigration advocates fear that Trump doesn’t expect Flores to be changed and that this will give him a pretext to balk at releasing immigrant families into the United States while awaiting hearings — what he derisively calls “catch and release” — and then to return to full-blown criminal prosecutions and family separations. But immigration attorney David Leopold tells me that the ruling “effectively blocks Trump from restarting his despicable family separation scheme again.”
Second, the big question now is how successful the administration will be in actually reuniting these families, with the number of separated children numbering more than 2,000. Lee Gelernt, the ACLU attorney working on this case, tells me: “It was clear the Administration had no plan to reunify these children, so the Court set hard deadlines to force the government to mobilize its resources and finally prioritize getting these children back to their parents.”
This now requires the administration to actively bring the resources of the federal government to bear on cleaning up the monstrous moral and humanitarian catastrophe it has unleashed, rather than handing a few phone numbers to parents looking for their kids and effectively telling them, “Good luck!”
Trump’s power is not absolute — for now
The bigger story here is that Trump is trying to use the broad immigration enforcement discretion presidents enjoy to enforce an agenda that is rooted in open bigotry (the Muslim ban) and motivated cruelty, which is at the core of family separations. The explicitly stated purpose of the “zero tolerance” policy is to produce more family separations precisely because the prospect of enduring them — and, by extension, the extreme fear, anxiety and suffering they threaten to induce — might dissuade more people from trying to cross the border, including people fleeing other horrors at home.