The Washington Post reports:
“The Trump administration plans to detain migrant families together in custody rather than release them, according to a new court filing that suggests such detentions could last longer than the 20 days envisioned by a court settlement.
“‘The government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry,’ Justice Department lawyers wrote in a legal notice to a federal judge in California who has been overseeing long-running litigation about the detention of undocumented immigrants.”
In other words, President Donald Trump is prepared to incarcerate entire families for indeterminate periods of time for what has been traditionally treated as a misdemeanor. Imagine if the administration decided “zero tolerance” for jaywalking meant you had to charge parents with a felony, keep them in detention and stick their kids in there as well. For how long? For a month? For a year? The Trump administration will not say.
The so-called Flores settlement agreement allowed the government to detain children for only 20 days. “The new filing does not explicitly say the Trump administration plans to hold families in custody beyond the 20-day limit, but by saying officials plan to detain them ‘during the pendency’ of immigration proceedings, which in many cases can last months, it implies that families will spend that time in detention.”
This is as inhumane as it is wasteful and dangerous; rather than use resources to go after drug runners and human trafficking and other serious offenses, the administration will be spending resources to stand guard over families.
Matthew Miller, former public affairs director for the Justice Department, tells me, “It seems clear they are going to first try to stretch the law and then when that fails blame a court for what is a problem of their own making.” However, Miller warns that “there is only one way out of this, and that is to back down from the unproductive and unnecessary policy that has created this entire problem.”
This is a not-very-subtle form of extortion, constitutional scholar Laurence Tribe tells me. “These plans assume legal authority the administration does not have and put desperate parents to a ‘Sophie’s choice’ between submitting to extended imprisonment together with their children if they want to pursue their asylum claims - and abandoning their children along with their claims to asylum in order to limit how long their children must suffer imprisonment.”
Leon Fresco, who served as deputy assistant attorney general for the Office of Immigration Litigation in the Obama administration, told The Post that, under the Obama administration, “officials felt it would be too cruel to present mothers with a Sophie’s choice between turning their child over to refugee resettlement authorities, or keeping them detained. … ’ What they want to do is put the choice to the mom, separate or not separate, but make the choice so onerous that there really is no option other than to stay in family detention.’”
One cannot help but think the administration was emboldened by the Supreme Court’s recent decision on the Muslim travel ban according the president exceptional latitude in the area of national security and immigration - despite replete evidence of religious bigotry. The Supreme Court essentially said a president can slap a national security rationale on just about any action and get a pass. Trump now intends to make full use of the latitude the court gave him. If religious discrimination was no bar to presidential edicts, the administration may figure due process can be brushed aside as well.
Contrary to uninformed talk-radio babbling, those who have come here, even those who come here illegally, have constitutional rights. Holding asylum seekers and their children indefinitely because the administration adopted a harebrained zero-tolerance policy presumes that the president has extraordinary power to create crises and then “solve” them by extraordinary, draconian means. Especially with this president, this is a frightful proposition.
One suspects the audacious proposal to imprison entire families indefinitely will be rejected by lower courts. Unfortunately, we have no confidence a Trumpized Supreme Court will sustain such rulings.
Jennifer Rubin is a columnist with The Washington Post.