The Law Against Family Separation

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Carrie F. Cordero is the Robert M. Gates Senior Fellow, Center for a New American Security and Adjunct Professor of Law, Georgetown University Law Center.

Heidi Li Feldman is Professor of Law and (by courtesy) Associate Professor of Philosophy, Georgetown University Law Center.

Chimène I. Keitner is the Alfred & Hanna Fromm Professor of International & Comparative Law, UC Hastings Law

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, thenSecretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border. Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration’s use of family separation and ensuring that it is halted now and not used again, by Trump or any other U.S. President.

In the Article, we start with a factual chronology of the Trump Administration’s family separation policy. We then argue for our positions regarding the illegality of the policy and its implementation. In Part II, we describe the federal government’s recognized authority to enforce immigration laws and ensure border security, on the one hand, and the domestic constitutional framework for protecting the basic rights of migrant parents and children, on the other. In Part III we examine the reach of domestic law, including the common law of torts, for dealing with wrongful family separation in the immigration setting. Part IV reviews international law that protects against this harm. In the Conclusion we propose a range of steps that the U.S. Congress could take to repair at least some of the harm caused by the family separation policy, and to ensure that no future administration contemplates similar action.

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