The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Media reports indicate that negotiations for a settlement to provide compensation for victims of the Trump Administration's 2017-18 family separation policy are at an impasse:
Attorney Lee Gelernt of the American Civil Liberties Union would not discuss details of the talks nor confirm a previously reported settlement proposal of several hundred thousand dollars to each affected person. He did, however, hold out the possibility of a trial, featuring parents separated from children as young as six months as witnesses, if there's no agreement to end the litigation….
About 5,500 children were forcibly removed from their parents under Trump's zero-tolerance policy in which parents were separated from their children as the administration sought to discourage people from crossing the border, even if they were presenting themselves to authorities to seek asylum.
Trump halted the practice in June 2018 amid widespread outrage, including from many Republicans, just six days before a judge ordered an end to the program in response to a lawsuit filed by the ACLU.
In addition to negotiating a potential settlement, the Biden administration has also been working to reunite some of the families. There are believed to be hundreds, and perhaps as many as 1,000-2,000, parents who were separated from their children and still haven't been located.
Among other things, I addressed the argument that the policy was justified because the administration was merely "enforcing the law," and the canard that Trump and then-Attorney General Jeff Sessions were merely continuing policies they inherited from the Obama Administration. Even if the latter were indeed true, it would not excuse the policy or Trump's continuation of it. It would just mean that Obama deserved a share of the blame. But, while Obama did have some awful immigration policies of his own (which I condemned at the time), this one was on Trump.
Given the blatant illegality of the policy and the enormous harm suffered by the children and their families, their is a strong case for giving them hefty compensation. Legal scholar and former US Attorney Joyce Vance White outlined some of the reasons in a recent Washington Post article:
First, these aren't voluntary payments. The Justice Department is negotiating with lawyers for victims of the Trump administration's family separation policy. They are working to settle large and potentially very expensive lawsuits before a court orders the government to pay those same claims. 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 go to trial, the United States faces a thousand lawsuits over a policy a federal court has already said shocks the conscience and that Biden has characterized as a "moral failing" of our country. Expert witnesses will testify to the trauma suffered when children were ripped from their parents' arms. 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….
Ultimately, the United States stands to pay large settlements, likely larger than what could be negotiated now. And the litigation process would further tarnish our national reputation if our country seeks to avoid responsibility for inflicting these horrors….
Under the zero-tolerance policy, more than 3,000 family separations caused lasting emotional damage to children and parents. 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….
By negotiating settlements, our government can take steps toward reclaiming its moral authority to speak on human rights issues and can restore families that have been damaged by past U.S. policy. Settling these cases while the opportunity exists is both smart and the right thing to do.
Some critics of compensation payments argue none is owed because the migrants in question crossed the border illegally. In fact, Trump's "zero-tolerance" policy imposed forcible separation even on numerous families who entered the United States for the entirely legal purpose of applying for asylum. Moreover, even if the families in question had acted illegally, that would not give the government a blank check to abuse them as much as it wants. Its policies must still be subject to legal and moral constraints. The government routinely pays compensation to convicted criminals abused by prison guards, for example.
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 circumstance that many of the victims were children who had done no wrong; they obviously cannot be held responsible for the actions of adult family members.
Another possible objection is that any compensation payments will likely come at the expense of taxpayers, most of whom had no role in the family separation policy. Indeed, polls showed a large majority of the public opposed the policy, after it became known in mid-2018.
It is indeed unfortunate that taxpayers will end up on the hook. But that is true for nearly all compensation payments for state-inflicted injustices. Whether the victims are Japanese-Americans confined to concentration camps during World War II, prisoners abused by guards, or ordinary citizens abused by rogue police officers, compensation for such wrongs - when available at all - almost always comes from the public fisc.
This is far from ideally just. But it is preferable to the alternative of paying no compensation at all.
That said, it would be better if the officials responsible for the policy had to pay at least some of the compensation out of their own pockets. Trump and Jeff Sessions were the ones most responsible for the family separation policy. Thus, they have a special moral obligation to compensate the victims. In addition, such personal liability would improve government incentives going forward. If Trump, Sessions, and other high officials knew that adopting this policy would likely result in their personally having to pay compensation to the victims, they might well have hesitated to move forward. Indeed, they might have done so even if the law required them to pay compensation for only, say, 10% of the harm they caused (with the Treasury picking up the rest of the tab).
For the moment, however, personal liability for official wrongdoing is largely blocked by a variety of legal rules, including immunity doctrines. But, just as we should abolish qualified immunity for rank-and-file law enforcement officers, we should also reconsider high officials' broad immunity from personal liability for ordering violations of constitutional and human rights, while acting in their official capacity.
Indeed, other things equal, high officials such as the president and the attorney general are actually more blameworthy for the injustices they commit than are low-level official wrongdoers. The former usually have more time to carefully consider their decisions; the family separation policy, for example, was developed over a period of many months. In addition, they generally have better access to high-quality legal advice, and therefore have even less excuse for breaking the law.
Sadly, a full-blown regime of personal liability for rights violations by high officials is unlikely to be enacted anytime soon. In the meantime, the best should not be the enemy of the good. The Biden administration should reach a settlement with the victims that grants them ample compensation as soon as possible. The exact appropriate amount, of course, is likely to vary from case.