Separating Migrant Children From Their Parents Is Not Required By Law, But Even if It Were…


There is no law requiring family separation at the border. And even if there was, that still would not be enough to justify the administration’s cruel policy.

That’s Ilya Somin, professor of law at George Mason University, writing at Reason. He notes that in April and May of this year, nearly 2000 children were forcibly taken away from their parents, “often under cruel conditions likely to cause trauma and inflict longterm developmental damage.”

McAllen, Texas facility where agents of the U.S. government lock up children they’ve forcibly and/or deceptively taken from their parents and guardians as they arrive at the U.S. border as prospective immigrants.

Somin writes:

The federal law criminalizing “improper entry” by aliens does not require family separation. The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both. Until the administration’s recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations. The use of civil proceedings generally does not require pretrial detention, and therefore obviates the need to detain either parents or children; some civil defendants were detained, nonetheless, but in facilities where families can stay together. The Trump administration, by contrast, has sometimes even forcibly separated children from migrants who have not violated any law, but instead have legally crossed the border to petition for asylum in the United States.

The Trump administration claims that their policy is required by the 1997 Flores court settlement. But that settlement in no way mandates family separation and detention of children away from their parents. To the contrary, it instructs federal officials to “place each detained minor in the least restrictive setting appropriate” and to release them to the custody of family or guardians “without unnecessary delay.” The settlement also mandates that federal immigration officials must “treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” Detaining children under harsh conditions, separated from their parents, is pretty obviously not “the least restrictive setting” possible, and it most definitely doesn’t qualify as treating children with “dignity, respect and special concern for their particular vulnerability.”

Even if the law did clearly direct criminal prosecution combined with automatic family separation in pretrial detention, it does not follow that the administration had a legal duty to adopt a “zero tolerance” policy that prioritizes prosecution of this particular type of offense. In a world where the vast majority of adult Americans have violated federal criminal law at some point in their lives, and there are so many laws and offenders that prosecutors can only target a small fraction of them, federal officials inevitably have vast discretion in determining which offenses to pursue and to what degree. First-time illegal entry into the United States is a mere misdemeanor carrying a penalty (up to 6 months imprisonment or a small fine) lower than the penalty for possession of small amounts of marijuana (1 year). The relative penalties suggest that federal law considers the latter a more serious offense than the former. Yet not even hard-core drug warriors like Sessions urge the federal government to adopt a “zero tolerance” policy under which we routinely prosecute all small-time marijuana users. In practice, the feds only target a tiny fraction of them. And when they do, they don’t separate their children from them, and detain the children under harsh conditions.

But even if the law required the government to take migrants’ children from them, Somin argues that that is no justification, for the law is unjust:

Not every law is just. Some, at least, are so unjust that there is no moral obligation to obey them. For example, there is widespread agreement that civil rights activists were justified in violating segregation laws, and abolitionists in violating the Fugitive Slave Acts. Violation of these laws was just because they inflicted grave harm on innocent people based on morally irrelevant characteristics: race and ancestry. Much the same is true of many of our immigration laws. Most of the undocumented migrants entering the United States with their minor children are fleeing violence, abuse, oppression, dire poverty, or other terrible conditions. The laws that bar their entry are largely based on immutable conditions similar to race: who their parents were, or where they were born. The US may not be responsible for the awful conditions these people are fleeing. But if we forcibly deport them back to places where they are likely to face oppression, privation, and often even death, we become complicit in the wrongs they suffer. As philosopher Michael Huemer explains, the situation the situation is akin to one where we use force to prevent starving people from buying food they need to survive.

But even if it were just, we have choices about how to enforce the law:

Even in the case of otherwise just laws, there must be moral limits to the means used to enforce them. The child-separation policy crosses any reasonable line. It inflicts harm grossly disproportionate to any offense. And most of that harm is suffered by children – people themselves innocent of wrongdoing. Even if their parents acted wrongly in trying to enter the United States, the children had little choice in the matter.

The essay is brief and well-written. You can read the whole thing here. I encourage you to share it widely.

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Colin McGinn
Colin McGinn
3 years ago

It seems evident that this separation policy is chosen precisely in order to be selectively and disproportionately harsh, so as to “send a message”. The message is: You will be unjustly and cruelly treated if you try to come to America. This pleases the Trump base and is supposed to have a deterrent effect (but there is no evidence of this). A new low in American politics, which makes our position on human rights stink of hypocrisy. Report

andy
andy
Reply to  Colin McGinn
3 years ago

This is surely true, which is why it’s strange to see Nielsen and others deny what they are doing (though of course different members of the Trump administration have made drastically different statements). These family separations can’t be a deterrent if people don’t know that they happen, but people still feel the need to pretend, on some level, that they don’t.Report

Colin McGinn
Colin McGinn
3 years ago

I say “our” for simplicity: I am not an American and have no wish to be (at least as things now are).Report

Hey Nonny Mouse
Hey Nonny Mouse
3 years ago

I would be surprised if anyone here supported Trump’s policy. This may be a case of preaching to the converted.Report

lovesick driftin' cowboy
lovesick driftin' cowboy
Reply to  Hey Nonny Mouse
3 years ago

I don’t support the policy, but I would like to know what the alternatives are. Trump supporters claim that catch and release doesn’t work because people just disappear. (Let’s just suppose the latter consequence is no good.) Sticking a bunch of adults in those rooms would bear its own risks. You could give each family its own room, but that is presumably not feasible. What to do?Report

Drew T
Drew T
Reply to  lovesick driftin' cowboy
3 years ago

For one, it’s important to point out that it’s not possible to achieve total control over borders without sacrificing other commitments and values, like human rights or a commitment not to torture children. Trade-offs have to be made. Do some of the ‘caught and released’ disappear from the government’s radar? Sure, but that’s a small price to pay to keep children from experiencing trauma. You can make the same argument for other government policies people are accused of exploiting, like welfare provisions. Do some people take advantage of these benefits? Probably (though fewer than detractors often think). Does this mean it’s permissible for the government to stop providing these benefits to families with children in the name of cutting waste or increasing efficiency? No.

The response to those who defend this policy needs to be that achieving perfect control over borders isn’t the only thing we value. I suspect many of these supporters would object to policies that require visa holders to be monitored by electronic devices, but a large portion of those who are documented initially entered legally. If they accept that liberty has a ‘cost’ in this context, maybe they can see that human rights (or even basic decency) does, too.Report

Matt
Reply to  lovesick driftin' cowboy
3 years ago

You could give each family its own room, but that is presumably not feasible.

In addition to the important points made by Drew T, we need to ask whether this statement is true in any meaningful sense. In what way is it “not feasible” to keep families together humanely while at least the preliminary steps of an asylum application are made? It would be costly (though maybe not that much more costly than doing what the US is currently doing, if it’s done minimally well, as foster care is itself quite expensive.) But, the cost would still be significantly less than many others the US is regularly willing to bear, and not that high all together. It would almost certainly be less, probably much less, then the costs currently being born by many European countries in relation to their own refugee “crisis”. Is there some other sense in which it’s “not feasible”? It would, presumably, be unpopular with the most fire-breathing “nativist” branches of the Trump coalition, and especially so with the explicitly racist Miller and Sessions, but can that really be the proper sense of “feasible” here? I’d guess not. Some might suggest that the _Flores_ settlement precludes steps like this, but that is, at least, not obviously so, especially insofar as the places where families are kept are not strongly jail-like. Is there some other plausible sense of “feasible” that’s relevant here that I’m missing? If so, I’d be glad to have someone spell it out clearly and with an appropriate amount of detail. Report

lovesick driftin' cowboy
lovesick driftin' cowboy
Reply to  Matt
3 years ago

My sense of feasible was not precise or thought out, but I guess I had in mind:
(i) it would take a longish time to build the right facilities, (ii) building the right facilities would be very expensive, and since yesterday I learned (iii) keeping families together entails detaining minors, which is legally precluded by Flores. But I guess none of this matters, since Trump ordered exactly what you are suggesting to be done.Report

Matt
Reply to  lovesick driftin' cowboy
3 years ago

Well, (i) can’t make it infeasible to keep families together, since surely if the facilities being used right now are good enough for kids, they are good enough for families. If they are not good enough for kids, then no one should be detained in any case. (ii) is in fact false, unless “very expensive” means “a comparatively trivial expense. This is especially so given that detaining anyone here is itself a policy choice and not required. It’s not acceptable to say that you’re going to make an optional policy choice, but then decide you don’t want to pay as much money as it would take to implement the policy choice without violating important rights. (iii) is actually false, a miss-reading of the Flores decision being used as an excuse, but of course it’s also not necessary to detain people in jail-like conditions anyway – it’s a policy choice the Trump administration has made. (The decision may well be in contravention of obligations under the refugee convention, though that’s taking things a bit far from the discussion above.) Report

Charles Pigden
Charles Pigden
3 years ago

This is just an idea that American readers might like to try, but given Jeff Sessions remarks that suggest that refugees are being punished for their ‘illegal’ activities, couldn’t the policy be legally challenged under the constitutional provision against ‘cruel and unusual’ punishments? Another possibility: couldn’t it be argued that the policy contravenes the Universal Declaration of Human Rights , which, since it is a treaty ratified by the Senate, constitutes ‘the law of the land (if I remember the constitution correctly)? Report

Alan White
Alan White
Reply to  Charles Pigden
3 years ago

Charles (if I may) the Constitutional provision would only apply to punishments administered through due process resulting in criminal guilt. The absurdity of this situation is that it is a procedural one that is willfully implemented by Executive policy that could easily be reversed as such. It’s all on Trump, despite his lies that this is due to Dems’ prior laws. And given this administrations’s record on honoring international agreements (witness today’s decision to leave the UN Human Rights Council), Trump will feel no pressure to rescind his brutal inhumane policies. Our only hope is Mueller, the voting booth, and probably those in combination. What a depressing state of affairs.Report

Nick
Nick
Reply to  Charles Pigden
3 years ago

Charles, I’m far from an expert in American law, but my understanding (which I have through my spouse, who studies American Lit and Culture, and from whom I quote in what follows) is that the situation is worse than Alan White indicates (in terms of potential for appealing to legal challenge through American courts). Since the Immigration Reform Act of 1891, the US legislative branch and, by extension, the executive branch have held plenary power (final decision-making power) over immigration law. (The immigration inspection station on Ellis Island was opened in 1892.) Since that time, Immigration Law has developed independently from Constitutional Law–and the Supreme Court has confirmed this plenary power as a result of the Scott Act of 1888 and the travails that Act caused Chae Chan Ping (a documented immigrant to the US who happened to be visiting China when the Scott Act was passed, tried to return to his new home in the US and was barred from re-entry). Ping brought his case to court for review and what resulted was what became known as the policy of consular nonreviewability.

Falguni Sheth discusses this a bit in the 5th chapter of her book, Toward a Political Philosophy of Race. Sheth also references Gabriel Chin’s “Segregations Last Stronghold” (UCLA Law Review, volume 46 (1998): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121119Report

Jacob Stone
Jacob Stone
3 years ago

As philosophers, should we not be considering some broader issues?
1. How do we distinguish between terrorism and deterrent? Both involve the use of violence to deter others.
2. Can removing children from their parents be used as a deterrent? Can we detain single parents who steal, for example? Indeed, is there any distinction between detaining thiefs or street level drug dealers and removing them from their children and cases we see at the border?
3. If yes, is that a difference in the moral weight of the “crime”? If yes, then at what point can we legitimately and justifiably remove children from parents because the parenst have broken the law?
4. Then there are even broader, and perhaps harder to articulate, issues about motivation. For example, the very justifiable outcry may be in part a concern that there are racist motivations behind the actions. But how do we demonstrate that and, if we do demonstrate a racist motivation, why has there never been an outcry about how this issue impacts the lives of countless children whose parents are American citizens,
Report