How much does the United States owe to immigrant families whose children were separated from them as part of the Trump administration’s “zero tolerance” approach to border crossings that began in May 2018? Is it $450,000 per person affected by the callous policy, a figure recently reported by the Wall Street Journal? More? Less?
President Biden says he doesn’t know how much these children and their parents are owed, but he absolutely believes they are owed something. “If in fact, because of the outrageous behavior of the last administration,” he said Nov. 6, “you coming across the border, whether it was legal or illegal, and you lost your child, you lost your child! … you deserve some kind of compensation no matter what the circumstance.”
Many on the right have challenged that reasoning. After all, they argue, the parents broke the law to cross the border, and should have known they were risking arrest and family separation.
But in dismissing outright the payouts — and for the record, the White House says the sums will be smaller than those reported — critics overlook scores of lawsuits already filed, and nearly 1,000 claims made, alleging lasting psychological harm. How responsible would it be to refuse to settle, and instead shoulder the high cost of litigation coupled with the risk of losing? If they do get to court, juries are likely to be as outraged as we were by the extraordinarily cruel and haphazard way the administration prosecuted the zero-policy approach.
Inevitably, that policy meant ripping children, including those too young to walk or talk, away from their parents. Scholars critical of the policy have argued that it opened the United States to liability for tort suits just like the ones that have been filed, and that it violated constitutional rights of the children affected. Many who were arrested had intended only to present claims of asylum, something Trump’s policies had made all but impossible to do at the border checkpoints where such claims are usually made. Republicans and Democrats alike balked at images of heartbreak at the border and within two months Trump issued an executive order ordering that families seeking asylum be kept together.
Trials that relived all of that trauma for jurors could result in far higher damages than any of the numbers now being discussed as settlement payments.
It’s an example of how America will be paying one way or another for the colossal mistakes of the Trump administration, especially when it comes to immigration.
How America came to be facing this particular dilemma is the result of dual policy disasters.
First, the child separation crisis arose out of a policy change announced May 7, 2018 by Attorney General Jeff Sessions that had its origins in the anti-immigrant fervor maintained by White House adviser Stephen Miller. It had been tested in Texas the year before, and Sessions made it nationwide policy as part of Trump’s demand that he get tougher on people crossing the border illegally, even if they were seeking asylum, a right guaranteed under both domestic and international law. Henceforth, every adult caught would be prosecuted, even if that meant taking away children too young to walk or talk.
Not only did Sessions and the upper ranks of the DOJ foresee the child separations that followed, according to the DOJ inspector general’s report from January, they welcomed them in the hope that they’d deter future immigrants from braving the border.
Arguably far worse was that nobody kept records of which child belonged to which parent, nor did they prepare a system for reuniting the families once the misdemeanor charges were resolved and the parents released or scheduled for deportation.
The policy broke apart more than 4,000 immigrant families, many of them fleeing danger in their home countries and pursuing asylum claims in the United States. Recent reports indicate that most of the children ripped from their parents’ custody were under 12; more than 200 were younger than 5.
Some are still separated, though Biden has made it a priority to reunite the families. And while Trump and his glowering, young xenophobe adviser Miller are gone, unpaid bills remain. The American people still owe both a moral debt and a monetary one.
The second policy disaster predated the Trump administration. This nation’s immigration policy has been an unholy mess for years. Trump’s contribution to a broken system was policy chaos and indifference to human suffering.
It’s hard to believe now, but just eight years ago, the Senate passed legislation touted as “comprehensive immigration reform” by a lopsided vote of 68-32. As immigration scholar Edward Alden recalls, writing in the current issue of Foreign Policy, the legislation would have made it easier for talented immigrants to live, work and study in this country; provided more money and resources for border security; and offered a pathway to citizenship to undocumented immigrants already living and working in the U.S.
