(Reuters) - President Trump’s nomination of federal appellate judge Brett Kavanaugh for the U.S. Supreme Court was actually not the only legal news of note on Monday.
On Monday afternoon, the U.S. Justice Department informed San Diego federal judge Dana Sabraw that the government would not meet his court-ordered July 10 deadline to reunify migrant parents with young children taken away by immigration officials at the U.S. border.
Of the 102 babies and toddlers our government removed from their migrant parents, only 54 were slated to be restored to their families in time to meet Judge Sabraw’s order, which not only directed the government to return kids to their parents but also barred immigration officials from separating migrant families. (The Justice Department subsequently said in a filing Tuesday that 27 of the remaining children are not eligible for reunification, primarily because the government considers their parents unfit; immigration officials have until July 26 to reunite parents with children over the age of 5.)
Meanwhile, just before President Trump announced Judge Kavanaugh’s Supreme Court nomination, a Los Angeles federal judge rejected the Justice Department’s motion to change the terms of a decades-old settlement that dictates the government’s treatment of underage migrants.
The judge, U.S. District Judge Dolly Gee, was quite scathing, calling out the Trump administration for attempting to leverage Judge Sabraw’s court order to undermine the rights of migrant kids. Judge Gee called the Justice Department’s arguments “strained” and “tortured,” and said DOJ was attempting to “light a match” to court-supervised protections for migrant kids detained by immigration officials.
As the U.S. Senate begins to consider Judge Kavanaugh’s Supreme Court nomination, I hope it is paying attention to this double-barreled litigation over the now-renounced Trump administration policy of separating migrant kids from their parents when they cross the U.S. border.
The Supreme Court has not directly confronted the constitutionality of stripping migrant kids from their parents when families cross the border together, though, as I’ll explain, it has considered, in other contexts, the limits of due process protections for migrants, including migrant kids. Senators who oppose family separation ought to ask Judge Kavanaugh for his views of that precedent.
To be clear, the constitutionality of family separation isn’t imminently headed to the Supreme Court. As you know, the president halted the practice of removing migrant kids from their parents in a June 20 executive order that said the administration’s policy is “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” At the moment, the government is enjoined from dividing migrant families who cross the border. (The court order, by Judge Sabraw in San Diego, bars the government from taking kids away from parents who cross the border unless the parent has a criminal history or is otherwise unfit.)
But as the ACLU pointed out in the case before Judge Sabraw, there are some big loopholes in the executive order, and the Justice Department could certainly appeal the injunction prohibiting future separations if migrant families continue to enter the U.S. On Tuesday, in response to a question about his administration’s failure to meet the court-ordered deadline to return babies and toddlers to migrant parents, President Trump reportedly said, “I have a solution. Tell people not to come to our country illegally. That's the solution. Don't come to our country illegally. Come like other people do. Come legally."
There’s a plausible argument that Judge Sabraw’s injunction against family separation conflicts with precedent from the 1st Circuit. As the San Diego judge explained in the opinion enjoining the migrant parents and kids, it’s beyond dispute that the U.S. Constitution provides due process rights to non-citizens, including immigrants who cross the border illegally. The Supreme Court said so more than a century ago in Yamata v. Fisher and hasn’t wavered since. “There are literally millions of aliens within the jurisdiction of the United States,” Justice John Paul Stevens wrote in 1976’s Mathews v. Diaz. “The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.”
The Supreme Court has also ruled, albeit in cases involving U.S. citizens, that the Constitution’s due process provisions protect families. In 2000’s Troxel v. Granville, for instance, Justice Sandra Day O’Connor wrote that parents’ interest in their kids’ care and custody “is perhaps the oldest of the fundamental liberty interests recognized by this court.”
Judge Sabraw wove together those two strands of precedent – enshrining migrants’ due process rights and applying due process to parents’ control of their kids – to conclude family separation is unconstitutional. But as he pointed out, the 1st Circuit reached a different conclusion in a similar case.
In Aguilar v. U.S. ICE, the Boston-based appeals court considered due process claims by more than 100 undocumented aliens who were detained when ICE raided their employer, a defense contractor. Many of the detainees had children, and they contended, among other things, that the government violated their rights by disrupting their families and leaving their kids uncared for.
The 1st Circuit said in its 2007 ruling that the government has a legitimate interest in enforcing immigration law, and ICE hadn’t “shocked the conscience” by detaining parents whose kids were left unattended. “Every such detention of a parent, like every lawful arrest of a parent, runs the risk of interfering in some way with the parent’s ability to care for his or her children,” the appeals court said. “So long as the detention is lawful, that so-called deprivation of the right to family integrity does not violate the constitution.”
Judge Sabraw said the facts were different in the case before him because the kids in Aguilar were not detained along with their parents. He said the “brutal” and “offensive” practice of breaking up families in government custody – including asylum seekers – did shock the conscience. But the 1st Circuit’s decision certainly leaves room for argument.
The Senate might also ask Judge Kavanaugh for his views of long-term detention of migrant families in facilities not designed with child welfare standards in mind. This issue also invokes constitutional due process questions the Supreme Court has touched upon but not directly confronted.
One of the key justifications the Trump administration cited for separating migrant families was a 1997 settlement known as the Flores agreement, which set the terms for the government’s handling of migrant kids. As I’ve explained, the Flores agreement requires immigration officials quickly to release underage migrants to the custody of relatives or legal guardians or to transfer the kids to facilities licensed by state child welfare agencies. Trump officials had argued that detaining families in unlicensed facilities for the entirety of criminal or immigration proceedings against migrant parents would violate Flores. The Justice Department asked Judge Gee of Los Angeles, who now oversees the decades-old Flores case, to change the terms of the settlement to allow the government to hold underage migrants in unlicensed facilities.
In Monday’s ruling, Los Angeles Judge Gee said she would not change the terms. If migrant parents want to keep their families together, she said, they can make that choice. But she said indefinite detention in unlicensed facilities “would constitute a fundamental and material breach” of the agreement. (The Justice Department told Reuters Monday night that the ruling will allow immigration officials to hold migrant families pending immigration proceedings unless the parent requests separation.)
The Supreme Court actually considered the Flores case way back in 1993, years before the 1997 agreement between the government and lawyers for migrant kids. In Reno v. Flores, the justices rejected the kids’ argument that they had a constitutional due process right to be released from detention into the custody of a responsible adult. Justice Antonin Scalia wrote in the court’s opinion that the government has constitutional discretion to detain migrant kids. “Minimum standards must be met, and the child's fundamental rights must not be impaired; but the decision to go beyond those requirements — to give one or another of the child's additional interests priority over other concerns that compete for public funds and administrative attention — is a policy judgment rather than a constitutional imperative,” the Flores opinion said.
But in 2001’s Zadvydas v. Davis, the Supreme Court ruled that indefinite detention violates migrants’ due process rights. (The case involved an apparently Lithuanian-born migrant from a German refugee camp who was ordered deported from the U.S. but remained in U.S. detention because neither Lithuania nor Germany would take him back.)
“Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent,” wrote Justice Stephen Breyer. “We believe that an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether … the constitution permits detention that is indefinite and potentially permanent.”
Judge Kavanaugh is a father. He cares enough about other people’s kids to have served as a school and rec league basketball coach. Given the constitutional uncertainty over the rights of migrant kids and their parents, we ought to know what he thinks about family separation. Senators, please ask.