Decency wins — and Trump gets smacked down

Trump's policy of family separation was part of a broader pattern of attacks against immigrants and should never have existed, argues Elias Lopez. (Kate Woodsome , Gillian Brockell/The Washington Post)

by Jennifer Rubin June 27 at 9:45 AM

On the same day that the Supreme Court upheld President Trump’s travel ban in a tortured ruling, a district court judge hearing a suit on behalf of a class of migrants separated from their children struck a blow for common decency and family reunification. The Post reports:

Judge Dana M. Sabraw of the United States District Court for the Southern District of California granted a preliminary injunction sought by the American Civil Liberties Union. He said all children must be reunited with their families within 30 days, allowing just 14 days for the return of children under 5 to their parents. He ordered that parents must be entitled to speak by phone with their children within 10 days.

The court slammed the administration for “a chaotic circumstance of the Government’s own making.” Sabraw, appointed by President George W. Bush, found: “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. Elected officials are weighing in. Congress is threatening action. Seventeen states have now filed a complaint against the Federal Government challenging the family separation practice.”

In issuing an injunction, the court found there was a likelihood that the plaintiffs would succeed on a due process claim. (“We are a country of laws, and of compassion. We have plainly stated our intent to treat refugees with an ordered process, and benevolence, by codifying principles of asylum.  The Government’s treatment . . . [of] class members does not meet this standard, and it is unlikely to pass constitutional muster.”) The court continued:

The practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, at all levels — state and federal, citizen and alien. Yet, the government has no system in place to keep track of , provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property.  Certainly, that cannot satisfy the requirements of due process.

The court cited at length the findings of the Children’s Defense Fund regarding the extensive harm done to children forcibly separated from their parents. The court expressed the shock and dismay many ordinary Americans are feeling:

The facts set forth before the Court portray reactive governance — responses to address a chaotic circumstance of the Government’s own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children. The extraordinary remedy of classwide preliminary injunction is warranted based on the evidence before the Court.

In contrast to the Supreme Court’s travel ban ruling, constructed to avoid identifying the president as an abject racist whose intent should have invalidated his executive order, this court did not avert its eyes. In ordering the reunification of children younger than 5 within 14 days, older children within 30 days and a halt to child separation, the judge followed a long tradition recognizing that anyone here — illegally or not — enjoys the benefits of ordered, fair government. (The entire country has been deprived of that under this president.) In this instance, the American people can be proud of their judiciary.

Consider, if you will, the Justice Department lawyer arguing in effect, “No, really, we can treat these kids worse than property.” Justice Department attorneys need to seriously consider their professional and own moral code of conduct in continuing to defend the administration’s inhumane practices. One hopes that every Justice Department lawyer will read the opinion, reflect on the judge’s admonitions and in the future refuse to sign on to briefs or undertake oral arguments in defense of barbarism. In the meantime, a significant victory for real family values and constitutional government has been won.