The president’s denial of reports that his DOJ is negotiating millions of dollars in payments to families separated by the Trump administration rings hollow.
The president’s denial of reports that his DOJ is negotiating millions of dollars in payments to families separated by the Trump administration rings hollow.
D uring his press conference yesterday, which mainly covered the Democrats’ Election Day woes, President Biden suggested that Fox News was hyping “garbage” reports that his administration has been negotiating payments of $450,000 or more as “compensation” for migrant families separated, pursuant to a temporary Trump administration policy, upon trying to enter the United States illegally.
It is a smear of a now familiar type: Biden, either uninformed about what his administration is up to or desperate to shift responsibility for a debacle of his own design, fulminates at critics whenever outrage inevitably follows revelation of the administration’s latest inanity.
As Wednesday’s press conference unfolded, Fox’s Peter Doocy raised with the president reports that the Justice Department would be paying “up to $450,000 each, possibly a million dollars per family” to settle lawsuits over the Trump administration policy. Doocy asked whether Biden had considered that this “might incentivize more people to come over illegally.” In response, Biden snapped, “If you guys keep sending that garbage out? Yeah. But it’s not true.” When Doocy asked him to confirm that this was a “garbage report,” Biden replied, “Yeah. Okay. That’s not going to happen.”
In point of fact, the settlement negotiations were first reported by press outlets generally sympathetic to Biden. These outlets have at their disposal well-placed administration sources, in addition to lawyers in the immigrant-activist bar, for whom leaking information to the media–Democrat complex is a reliable strategy for portraying illegal-immigration controversies in a light favorable to their clients. In this instance, the habitually chatty American Civil Liberties Union is representing many of the migrants.
Less than a week ago, the Wall Street Journal’s news pages reported that the Biden Departments of Justice, Homeland Security, and Health and Human Services were considering these huge payouts to settle claims brought mainly by ACLU attorneys on behalf of the parents of approximately 5,500 children who claim their families were separated at the border. The Journal said its sources were unidentified “people familiar with the matter.” There is no reason to doubt that statement’s accuracy.
NBC News soon echoed the Journal’s reporting, citing “three sources familiar with ongoing negotiations in a lawsuit brought on behalf of separated families.” These “negotiations,” the report elaborated with a similar ring of truth, were occurring “between the Justice Department and lawyers representing the separated families in a number of tort cases that have claimed the families experienced harm when they were forcibly separated.”
Sharply reacting to Biden’s peremptory dismissal of the reports as “garbage,” ACLU executive director Anthony Romero told Fox News, “President Biden may not have been fully briefed about the actions of his very own Justice Department.” Otherwise, Romero inveighed, Biden would be “abandoning a core campaign promise” to redress what he had decried as the “criminal” Trump administration policy.
So far, the Justice Department is not commenting — at least not for attribution.
The thought of paying settlements to alien families, led by adults who were intentionally violating our laws by attempting to enter the United States unlawfully, should anger Americans. Even if one concedes that the Trump policy was rash or poorly implemented, it was — unlike the migrants’ behavior — entirely lawful.
When American adults violate the criminal law, it is common for them to be imprisoned and thus separated from their children, often for years, frequently in penitentiaries remote from where the families reside. If an arrest takes place when the criminal parent is in the company of his family — regardless of whether the family is knowledgeable of or complicit in the alleged criminality — the accused may be forcibly separated from the family. Tragically, the children can be scarred by this experience. But the fault for that lies with the adult criminals, not American law-enforcement officers or the American taxpayer. We don’t pay criminals’ families compensation for their suffering.
What’s more, our legal system not only sympathizes with the plight of alien children caught up in their parents’ lawless schemes, it is compassionately solicitous beyond what the Constitution requires (see, e.g., Justice Scalia’s 1993 opinion for the Supreme Court in Reno v. Flores). Indeed, in some ways, the treatment of alien children is superior to what American children experience when they are caught up in the criminal schemes of their parents.
Besides the illegal-alien adults and smugglers who recklessly endanger them, alien children are most victimized by the unintended consequences of half-baked policies forged by progressives. In some cases these policies take shape through legislation such as the 2008 Trafficking Victims Protection Reauthorization Act, which encouraged family-unit migration from Central America. In others, they are the result of collusive litigation, in which Democratic government officials sit across the “negotiating” table from Democratic immigrant activists, conveniently agreeing on impractical detention protocols — or, more accurately, non-detention protocols (such as the Flores settlement) — given the force of law by activist progressive judges in rulings that Democratic administrations fail to appeal to the Supreme Court.
The Trump administration implemented the so-called zero-tolerance policy for a six-week period in 2018. It was called “zero-tolerance” — as opposed to, say, “the law be damned” — because federal law unambiguously requires aliens apprehended unlawfully crossing our borders to be detained until their removal proceedings are resolved. The alien children caught up in these schemes have been held under a different set of rules, on the quite understandable rationale that they should not be detained with the adults.
That is, zero-tolerance is the outcome that results from following the applicable federal law to the letter: If families have come to the border as a unit, federal law dictates that they should be separated. As a compassionate but legally dubious act of discretion, federal authorities under administrations of both parties have prioritized keeping the family units together over enforcing the law. But they are not required to do so.
The ACLU’s theory, which the Biden administration is indulging, is that the Trump administration’s faithful enforcement of federal law created an actionable tort — theoretically, the infliction of emotional distress — for which the American people should pay lucrative settlements (media reports indicate over $1 billion in toto), even though the harm was actually caused by the illegal conduct of the adult aliens.
That is scandalous. The fact that Biden, for demagogic political purposes, called the Trump administration’s actions “criminal” does not make them so. Congress should be vigorously investigating the Department of Justice’s negotiations. In particular, lawmakers should be exploring what lawyers are involved in them, on both sides, and what attorneys’ fees are anticipated to be paid out of the cozy settlements that result. Even if the law has been enforced more exactingly than, from a humanitarian perspective, the circumstances may have warranted, it cannot be an actionable tort to execute Congress’s laws as written.