This child separation policy is both unjust and illegal, as I’ve already explained in my previous posts. Federal courts have ruled against this policy, confirming its illegality.
I also addressed the argument that Trump’s policy was justifiable because it was “enforcing law,” as well as the idea that Trump and Jeff Sessions, the then-Attorney general, were simply continuing the policies that they had inherited from Obama. It would not justify Trump continuing the policy, even if it were true. This would only mean Obama was to blame. It was true that Obama had some terrible immigration policies, which I also condemned at the time. But this blame belongs to Trump.
The policy’s blatant illegality and the immense harm caused to children and families by it, there is strong argument for giving them substantial compensation. Joyce Vance White, a former US Attorney and legal scholar, outlined the reasons in a recent article. Washington Post article:
First of all, they are not voluntary. Lawyers representing victims of Trump’s family-separation policy are being negotiated by the Justice Department. Before a court order, the government is required to pay these claims, they are trying to settle large and expensive cases. The litigation risk here is high, and the U.S. government will almost certainly end up making payments to these plaintiffs — whether through settlements now or pursuant to court judgments later….
If…. These cases will go to trial and the United States could face a thousand lawsuits about a policy, which a federal judge has said “shocks the conscience” and Biden called a “moral failure” of the country. Expert witnesses will be called to testify about the trauma caused by children being taken from their families. Evidence will surely include the Justice Department inspector general’s report finding that the department neglected to ensure it collected information necessary to reunite families and that the cruelty of the policy was deliberately calibrated by then-Attorney General Jeff Sessions to deter immigration….
In the end, the United States is likely to accept large settlements that are much larger than those currently being negotiated. And the litigation process would further tarnish our national reputation if our country seeks to avoid responsibility for inflicting these horrors….
Over 3,000 family splits were against the law and caused long-lasting emotional trauma to parents and their children. As of February, more than 500 children, many of them under the age of 5 when they were separated, had still not been reunited with their families….
Our government can negotiate settlements to regain its moral authority and speak out on human rights issues. This will also help families that were affected by U.S. policies in the past. It is smart and right to resolve these cases as soon as possible.
Some people who criticize compensation payments claim that no payment is due because illegal migrants crossed the border. Trump’s “zero tolerance” policy actually led to the forcible segregation of many immigrants who had entered the United States legally for the sole purpose of applying for asylum. Even if these families had committed illegal acts, it would not be enough to give Trump’s government the right to use them in any way that it pleases. The government’s actions must be restricted by legal and moral restrictions. For example, the government will often pay compensation for convicted criminals who are abused in prison by guards.
In this situation, the case for compensation is bolstered by the facts that any law-breaking by the families was minor (the rough legal equivalent of possessing a small amount of marijuana), the unjust nature of the laws in question, the severe and willfull nature of the abuses inflicted by the government, and the reality many of the victims were children who had done no wrong; they obviously cannot be held responsible for the actions of adult family members.
A second possible argument is the possibility that compensation payments could be made at taxpayers’ expense, as most taxpayers had no involvement in the family-separation policy. In fact, the majority of respondents to polls opposed the policy after its release in mid-2018.
Unfortunately, taxpayers are going to be on the hook. This is true of almost all state-inflicted inhumanities compensation payments. No matter if the victims were Japanese-Americans held in concentration camps during World War II or prisoners who were abused and beaten by guards, ordinary citizens, or ordinary police officers, the majority of compensation payments for these wrongs come from the public purse.
Although this isn’t ideal, it does make things easier. It is better than the alternative to paying zero compensation.
The policy’s officials should pay at most a portion of the costs. Trump and Jeff Sessions are the most accountable for the policy of family separation. Therefore, the two have a moral responsibility to make sure that victims are compensated. This would increase government incentives and help to reduce personal risk. Trump, Sessions and other top officials might not have hesitated in moving forward if they had known that this policy would require them to compensate victims extensively. They might even have done it even though the law only required that they pay 10% of the damage they did (with the Treasury paying the remainder).
However, for the time being, personal liability is blocked by various legal rules. We should eliminate qualified immunity for rank and file law enforcement officers. However, high-ranking officials should be reexamined for their broad immunity against personal liability for ordering violation of Constitutional or Human Rights while they are acting as official.
Despite all other factors being equal, the President and Attorney General are more responsible for the wrongs they cause than low-level wrongdoers. They are more likely to take their time and carefully review decisions. For example, the family separation policy was created over many months. You also usually have less reason to violate the law because they have access to better-quality legal counsel.
Unfortunately, there is no prospect of a complete regime that will impose personal liability on high-ranking officials for violating rights. The best is not always the better. Biden should quickly reach an agreement with victims to provide them adequate compensation. Of course, the exact amount will vary depending on each case.