How Separating Families At The Border Is A (Somewhat) New Effect Of Old Government Policy [Part 1]

Anybody who has turned on the news over the past several days has undoubtedly heard about one of the biggest political controversies that President Trump has faced yet.

The images and stories coming from the border are truly troubling, but rather than move to immediately remedy the situation, Washington D.C. appears to be more interested in playing the blame game. The president has been directing his ire at Congress (namely Democrats) and its inability to address current legal requirements. Members of Congress have been reciprocating their frustration back upon the White House and its subsidiary agents for enforcing the law in a manner which they find unnecessary and reprehensible.

Such political posturing has always bothered me, so, while I have my own position on this specific dispute between the Legislative and Executive Branches, this post wont play along.

Everyone should instead be prioritizing their efforts on solving the issue at hand rather than screaming and waving their political flags to the public about it. But before we can craft a legal solution to what is currently going on at our border we must understand how we got here in the first place.

Anybody who seeks to trace legal histories always starts with the dilemma of choosing an origin point. This matter is no different, but one thing is abundantly clear. The current issue clearly begins long before President Trump’s DOJ and DHS started to enforce a “zero-tolerance policy.” In fact, this story more appropriately starts at least 25 years ago.

The Supreme Court Rules On Regulations Addressing Unaccompanied Minors

Back in 1993, the Supreme Court ruled on a class action lawsuit entitled Reno v. Flores. The case involved unaccompanied “alien juveniles” who were “arrested by the Immigration and Naturalization Service (INS) on suspicion of being deportable.” In accordance with an immigration regulation from 1988, these minors were subsequently detained while they waited for their deportation hearings to be completed. However, the regulation permitted them be released to “their parents, close relatives, or legal guardians.” Due to a consent decree that was agreed to earlier in the proceedings, minors who were not released to any of these three entities prior to the completion of their hearings had to “be placed in juvenile care facilities” that were beholden to the same regulations that applied to care facilities for American children who were dependents of the government.

The question of the case was whether or not the regulation’s requirements (that minors could only be released to parents, close relatives, or legal guardians) were unconstitutionally restrictive. Specifically, the class action suit argued that there existed a right under the Constitution and existing immigration laws for detained minors “to be routinely released into the custody of other ‘responsible adults.’” Both the District Court and the Court of Appeals agreed with the unaccompanied minors’ claims and ordered that “responsible adult parties” be added to the regulation so that such minors could be released to these entities as well. However, the Supreme Court reversed these rulings, and they did so in an overwhelming 7–2 decision which would have a significant impact on America’s immigration laws moving forward.

Writing on behalf of the supermajority, Justice Scalia rationalized the Court’s decision by discounting both the constitutional and statutory defenses that the lower courts found merit in.

With regards to the constitutional claim, the Court denied the notion that the minors were deprived of substantive due process rights by the government’s decision to only release them to a parent, close relative, or legal guardian. To disagree with this conclusion, one would need to proved that these minors, who were a responsibility of the US government upon their unaccompanied entry into the country, had the right to be placed into the custody of an unrelated private entity rather than into the care of a government sponsored facility. No such argument was successfully made before the Court, and this was in no small part a result of the fact that the bar to establish the existence of such a substantive due process right, especially in the context of immigration law, was quite high based on Supreme Court precedent. The Court’s decision on this particular portion of the case was also heavily bolstered by the existence of the aforementioned consent decree, which, as stated above, required that the juveniles in question (those who had no available parent, close relative, or legal guardian) be detained in care facilities beholden to a set of standardized services.

With regards to the statutory claims, the Court largely showed deference to Congress which had previously passed laws providing the Executive Branch with a broad level of discretion on the issue of immigration related detention. The Court ultimately reasoned that INS’s enforcement of the regulation in question was justified on the grounds that it provided the minors involved in the case with procedural due process and was within the purview of one of the agency’s lawful purposes (prioritizing the welfare of such juvenile immigrants). Again it would have been incredibly difficult for one to have successfully argued against the Court’s reasoning on this matter. The INS, which morally and legally had to account for the juvenile’s welfare in however they choose to exercise their discretion in these matters, simply did not possess the capabilities necessary to “conduct home studies for individualized placements” for minors who lacked the ability to be released to the “parent, close relative, or legal guardian” yet wanted to be released to the much more amorphous entities of “responsible adult parties.”

It is important to keep in mind that the detention that was being discussed in this Supreme Court case, as well as much of the detention that is being discussed in today’s arguments, would only last for the limited time required to initiate the appropriate hearing for each juvenile immigrant. Unlike adults, these minors could not simply be sent off on their own and merely told by INS officials to show up at a courtroom on a specific date. No party to the case was arguing for such an outcome.

As stated above, the true question of this case was what to do with these children before their hearings began and while their hearings were proceeding. This was, and still is, a serious dilemma, since the vast majority of children crossing the border at the time of this Court case, and at this very moment, were not crossing with family members or legal guardians. They were, and still are, predominantly crossing unaccompanied.

It is also important to point out that the images and ideas that are conjured up by the word detention may not accurately represent the facilities that were being discussed by the Court. On this matter, Justice Scalia wrote the following:

“Legal custody” rather than “detention” more accurately describes the reality of the arrangement, however, since these are not correctional institutions but facilities that meet state licensing requirements for the provision of shelter care, foster care, group care, and related services to dependent children, and are operated in an open type of setting without a need for extraordinary security measures. The facilities must provide, in accordance with applicable state child welfare statutes and generally accepted child welfare standards, practices, principles and procedures, an extensive list of services, including physical care and maintenance, individual and group counseling, education, recreation and leisure-time activities, family reunification services, and access to religious services, visitors, and legal assistance. 

There of course exist facilities that may not meet the standards discussed in this case, but such poor environments are the result of inadequate government enforcement not lack of adequate government policy.

… So What?

At this point, you are probably wondering what any of this has to do with where we are today. How did a 1990s Supreme Court case regarding unaccompanied minors, and an immigration agency that has not existed in over 15 years, lead to contemporary government officials separating accompanied minors from their parents?

Well, the Court’s ruling in this case did not end the matter, it merely sent it back down to the lower courts so that the case could continue to be litigated in accordance with the majority’s ruling. In the course of the lower court’s continued reconsideration of this case the matters involved began to shift and so too did the implications for our country’s immigration laws.

Those legal shifts and policy implications will be explored in Part 2.

This is Part 1 of a 2 part series on the origins of our current immigration crisis.  

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