“There may be some litigation,” President Trump said off-the-cuff as he signed an executive order purporting to suspend his administration’s policy of taking migrant children away from their parents.
It was an understatement.
In the subsequent chaos, with Congress increasingly unable to pass legislation to address the situation, an army of lawyers mobilized, filing cases aimed at permanently ending the Trump administration’s family separation policy and reuniting the thousands of parents and children still held in separate detention facilities in different states.
Late Tuesday night, the first of these cases struck home. A federal judge in San Diego blocked any future family separations and ordered the government to reunite all separated families within 30 days, adding that children under five years old who have been torn from their parents must be returned within 14 days, and all parents must be put in phone contact with their children within 10 days.
The decision is likely just the opening salvo in a long legal battle that will be waged in federal courts across the country. Here are the cases most likely to force the administration’s hand.
Reuniting separated families
U.S. District Judge Dana Sabraw, an appointee of President George W. Bush sided Tuesday night with the American Civil Liberties Union and issued a sweeping national injunction on the Trump administration’s family separation policy.
ACLU lead attorney Lee Gelernt had called on Judge Sabraw to act swiftly in a status hearing on Friday, telling him that without an immediate court order forcing the administration to reunify the families, the U.S. will have on its hands “a humanitarian crisis of the utmost proportions.”
Sabrew agreed, and in his ruling painted a damning picture of the Trump administration’s self-inflicted crisis.
“There is no genuine dispute that the Government was not prepared to accommodate the mass influx of separated children,” he wrote. “Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months.”
Sabraw also agreed with the ACLU that Trump’s executive order that purported to end immigrant family separation does not do so in practice.
“It is silent on the issue of reuniting families that have already been separated or will be separated in the future,” he said of the White House’s order.
With the administration expected to fight the national injunction, legal groups across the country are fighting for the reunification of individual families, hoping to create test cases that eventually lead to the courts declaring the separations unconstitutional.
In federal court in D.C. on Wednesday afternoon, attorney Jerome Wesevich will argue on behalf of three immigrant parents currently being held in South Texas whose children have been removed from them and sent to detention centers in other states. Wesevich told TPM that this is a clear violation of their Fifth Amendment rights.
“Supreme Court has clearly held that the bond between parent and child is sacred and more important than any property rights, so government interference with that bond has to have a darn good reason, or in legal terms, a compelling state interest,” explained Wesevich, who is affiliated with the Texas Rio Grande Legal Aid group. “We believe the government has no legitimate basis for separating them.”
One of the parents Wesevich is representing, an asylum-seeker from Guatemala who fled after allegedly receiving death threats, has been able to speak to her three children a couple times each week since they were separated. Another, a mother from Guatemala, has only spoken once to her child since they were separated in mid-May. The third, an asylum-seeker from Honduras, does not know where his daughter is and has not been able to speak to her at all.
“These individual parents are examples of what over 2,000 parents are suffering right now,” Wesevich told TPM. “Ultimately, the case could set the precedent that it is unconstitutional for government to separate children from their parents in immigration custody.”
As President Trump calls openly for immigrants to be denied due process, the ACLU and other legal groups are hoping courts send a strong message that the Constitution cannot allow that to happen.
“The Fifth Amendment specifically says it applies to persons, not citizens,” Gelernt told TPM. “The right to due process applies to everyone, including non-citizens.”
Rolling back Flores
Embedded in the text of Trump’s executive order was a directive to his Justice Department to ask federal courts to overturn key protections for immigrant children in detention. The Flores settlement, which dates back to the mid-1990s and was upheld in 2016, provides that immigrants younger than 18 years old can’t be held in immigration custody for longer than 20 days. It also set standards for the food, medical care and other conditions of their detention, saying the government can’t hold children in facilities that can’t pass state child welfare licensing regulations.
Now, the Trump administration is asking a federal judge in Los Angeles to modify Flores so it can detain immigrant children and parents together indefinitely, “throughout the pendency of criminal proceedings,” in facilities that were not designed for children.
The National Youth Law Program, which originally fought for the Flores settlement, is now defending it from this modification effort. They are pointing to the Obama administration’s failed effort to convince the courts that Flores does not apply to immigrant families detained together for long periods of time, but only to migrant children who arrived in the U.S. unaccompanied. Federal judge Dolly Gee, who rejected that line of argument, will hear the Trump administration’s similar pitch as early as this week.
While the Trump administration is arguing that a rollback of Flores is necessary to end the forced separation of children and parents, the attorneys who brokered the settlement and other legal experts say that’s not the case. They’re arguing for a return to the system used for decades, in which immigrant families were granted supervised release until their court dates.
“They could just release the parent and child together,” Gelernt told TPM. “They aren’t going to be flight risk or danger.”
Wesevich is pushing courts for a similar solution. “The government has a lot of ankle bracelets,” he told TPM. “They could use those to guarantee that families will appear for immigration proceedings. That’s the most cost-effective humane way.”
Blue states ride in
On Tuesday, a coalition of 18 Democratic state attorneys general sued the Trump administration over the family separation policy, representing Massachusetts, California, Delaware, Iowa, Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington State and the District of Columbia.
“Child internment camps in America — the Trump Administration has hit a new low,” said California Attorney General Xavier Becerra in a statement sent to TPM. “Today we are taking the Trump Administration to court because the safety, security and well-being of our children is too important to be threatened by a heartless political maneuver. Not only does the Trump Administration’s policy impact the health and safety of these separated families, it also threatens California’s ability to ensure our residents’ rights and health are protected.”
The lawsuit, filed in federal court in Seattle, Washington, is aiming to strike down the Trump administration’s family separation policy and force the administration to immediately reunify the 2,000-plus families in ICE custody that remain separated today.
“Parents are not provided with information about their children’s whereabouts or how to locate them. As a result, parents have been unable to locate or communicate with their children, are not receiving regular in-person visitation or phone contact with their children, and have not been told if or when their families will be reunified,” the complaint says.
Without federal court intervention forcing reunification, the attorneys general argue, the President’s executive order “will have no impact on the thousands of families who have already been traumatized.”