The U.S. should settle with families separated by Trump-era policies
Reports that U.S. officials are engaged in talks to offer “compensation” to immigrant families separated after illegally crossing the border from Mexico have drawn criticism from Republicans. Although President Joe Biden was critical when asked this week about payments of as much as $450,000 per person, a White House spokesperson said Thursday that the president is “comfortable” with smaller settlements. Here’s why the government should make these settlements.
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.
Already, about 940 claims have been filed by families caught in the worst excesses of the Trump administration’s anti-immigrant policy between April and June 2018. Thousands of families were separated. Many of the cases involve people who were lawfully seeking asylum. Others involve infants and small children. Children were removed from their families without any finding that parents were unfit, violating due process rights. Many children were taken away while parents were in court or receiving medical treatment, so they were not even given a chance to say goodbye. In June 2018, a court ordered the government to stop separating children from their families, finding that the policy “shocks the conscience” and violated the Fifth Amendment right to family integrity. Given the law and the facts, the government’s defense to liability is weak. Proceedings to date bear this out: The government has lost motions to dismiss the families’ claims in four cases.
When I served as a U.S. attorney, I represented agencies sued under the Federal Tort Claims Act, the same statute applicable to many of these cases. My experience suggests that the facts will only get worse for the government as discovery unfolds. For instance, in one of the four cases a court declined to dismiss, a federal judge in Arizona noted: “Plaintiffs were held in hieleras — ‘small, freezing concrete cells crowded with twenty to thirty other migrant families.’ ... CBP officials provided Plaintiffs with limited food and water and no room to lie down.” Cases of sexual abuse while children were in U.S. custody have been reported. The sensible — and right — thing to do in these cases is to negotiate settlements that provide appropriate compensation and support to the families.
If, however, the government doesn’t settle and 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. The plaintiffs’ presentations will be devastating, and it will be expensive for the government to mount a defense.
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. So much for the shining city on a hill.
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.
Good lawyers know when it’s in their client’s best interests to settle a case. This is one of those times. The law and the facts are bad for the government. In our hyper-politicized environment, even an effort to protect U.S. interests will inevitably be spun as a tale of excessive payments that “encourage” more illegal immigration. The Biden administration will have to be clear that it is settling claims for a finite group of people harmed by Trump-era human rights abuses. Only families separated during that time would qualify. Any attempts at misdirection must be met with the facts — that settling the claims is the best option for the United States.
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.