The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
More than two years after a federal court ruled that the Trump administration's migrant family separation policy was illegal and ordered reunification of the children with their families, over 500 of the victims still have not been reunited with their parents. The reason is that the parents in question were deported, and the government officials operating the program didn't bother to make any provision for keeping track of them for purposes of eventual reunification, even though they knew that many young children were unlikely to ever be able to find their parents again on their own:
Lawyers appointed by a federal judge to identify migrant families who were separated by the Trump administration say that they have yet to track down the parents of 545 children and that about two-thirds of those parents were deported to Central America without their children, according to a filing Tuesday from the American Civil Liberties Union.
The Trump administration instituted a "zero tolerance" policy in 2018 that separated migrant children and parents at the southern U.S. border. The administration later confirmed that it had actually begun separating families in 2017 along some parts of the border under a pilot program. The ACLU and other pro-bono law firms were tasked with finding the members of families separated during the pilot program.
Unlike the 2,800 families separated under zero tolerance in 2018, most of whom remained in custody when the policy was ended by executive order, many of the more than 1,000 parents separated from their children under the pilot program had already been deported before a federal judge in California ordered that they be found….
To my mind, the family separation policy could well be the greatest evil perpetrated by the Trump administration, which is saying no little, given some of the other things they have done. I discussed the reasons why it was so deeply unjust in this 2018 post, which includes responses to claims that Trump and then-Attorney General Jeff Sessions can't be blamed because they were "just enforcing the law." As the court decision striking down the policy makes clear, far from being a proper law enforcement measure, it was actually illegal itself. And even if it were not illegal, it would still be a horrific injustice.
I believe the Ukraine scandal was a serious enough abuse of power to justify impeachment. But if it were up to me, I would rather have impeached Trump over the family separation policy, which was both more obviously illegal, and caused vastly greater harm to innocent people. Then-Attorney General Jeff Sessions' central role in the family separation policy is one of the reasons why I cannot agree with those (including some on both the left and the right) who lamented his forced departure from office in 2018, and praised him for supposedly standing up for the rule of law. He and Trump deliberately adopted family separation for the purpose of punishing and deterring migrants. And they applied it even to many migrant families who had not violated any law, but instead legally crossed the border to petition for asylum in the United States.
I suppose I should also briefly address the canard that Trump and Sessions were just continuing policies previously initiated by the Obama administration. This oft-heard excuse just simply is not true. If Trump and Sessions were just continuing Obama's policies, they would not have had to issue a new "zero tolerance" order to get what they wanted. Likewise, there would have been no need for the 2017 "pilot program" for family separation, which—as discussed above—resulted in hundreds of family separations that still haven't been rectified. There would have been no point to the pilot program if the policy it sought to test was already in place.
To say that Obama was not to blame in this case, is not to deny that his administration also had some awful immigration policies. They did, and I condemned them at the time. Trump's, however, have been substantially worse. In any event, previous administrations' abuses of power do not justify those of the current one—and vice versa.