In justifying its willingness to dole out large cash payments to families separated at the border to settle lawsuits, the White House has insisted that doing so will save the government money.
That’s rich coming from an administration engaged in the biggest spending blowout in U.S. history as it works to transform the nation into a European entitlement state. It’s also a lie. As explained below, there is no case for monetary relief.
First, some background: Over the years, unelected bureaucrats and activist judges have weakened America’s immigration enforcement system, incentivizing illegal immigration and immigration fraud.
In 2015, U.S. District Court Judge Dolly Gee blew a massive hole in the southern border’s legal infrastructure by decreeing that the requirements of the Flores Settlement, a Clinton era agreement concerning unaccompanied minors apprehended at the border, applies to accompanied minors.
That decision forced the Obama administration to abandon its policy, begun in 2014, of detaining more family units together until their cases could be heard by an immigration judge. (The Flores Settlement requires the government to release most unaccompanied minors to an adult relative or other sponsor during such time.)
Once DHS began detaining families, far fewer attempted to cross the border — apprehensions declined from a “crisis” number of 68,445 in fiscal year 2014 to 39,338 in 2015. When the policy was discontinued, numbers surged again — 77,674 in 2016, soon reaching the hundreds of thousands yearly.
The political class loves talking about the “root causes” of illegal immigration. This should frighten the good folks living in poor countries, as it really means shoveling more money to left-wing, anti-growth NGOs.
Here’s a better explanation: America’s back door has been pried open. Many migrants choose to make “the dangerous journey to illegally enter the United States” because “they expect to be immediately released from custody.”
And that’s not Donald Trump speaking. It’s in a 2015 federal court declaration prepared by Obama official, Tae Johnson, who is currently acting head of ICE.
Despite what you hear from advocacy groups, aliens frequently fail to appear for their immigration hearings or heed a final order of removal. From fiscal years 2014 through 2018, the “true” immigration court in absentia rates for family unit aliens encountered at the southwest border was an astounding 66 percent. (RELATED: Joe Biden Gets Admonished by His ACLU Bosses)
By the way, Johnson’s declaration notes that by detaining families, officials were able to identify individuals with “serious criminal records or gang associations in their country of origin” and “prevent their release into the local community.”
Americans have every right to be worried that criminals and gangs are exploiting the Biden-made border mess, even if their woke overseers consider such concerns xenophobic dog whistles.
In any case, in 2018, the Trump administration, hands tied by the Ninth Circuit, implemented “zero tolerance”: instead of releasing migrant families with a notice to appear (a “permiso,” as it’s known south of the border), it began prosecuting virtually all adults for illegal entry.
Necessarily, this separates family units — minors can’t tag along as adults are transferred to U.S. Marshals for criminal processing. As this Congressional Research Service notes, there was no “family separation” policy.
The problem was execution, not policy. As detailed here, officials expected that adults, after serving a brief jail sentence, would be quickly reunited with minors. But poor data collection and information sharing processes prevented agencies from tracking some cases — delaying reunification.
Judge Dana M. Sabraw, who preliminarily enjoined zero tolerance in June 2018 in Ms. L. v. U.S. Immigration and Customs Enforcement, et al. (Trump ended it earlier that month amid bipartisan condemnation), would surely disagree with the execution versus policy remark.
In his preliminary injunction ruling, he concluded that absent criminality or unfitness, separating adults from minors so that the former can be prosecuted violates due process. By his reading, most inadmissible aliens who cross the border as part of a bona fide family unit must be released into the interior of the U.S. — no charges, no jail.
So much for borders! His ruling isn’t binding on other courts, and the Trump administration, anxious to move past the zero-tolerance distraction, entered into a negotiated settlement framework with the ACLU in later 2018, foregoing its appeal.
But the injunctive relief litigation has nothing to do with whether the ACLU and other plaintiffs’ representatives could win money from the government.
For money damages, they are using Bivens actions, the Federal Tort Claims Act, and statutory civil rights claims.
They don’t have a leg to stand on. Take the Bivens claims — so named for Bivens v. Six Unknown Fed. Narcotics Agents, a 1971 case where the Supreme Court held that FBI agents could be liable for violating a suspect’s Fourth Amendment rights.
The allure of Bivens is that it offers an end-run around the government’s sovereign immunity: officials are sued personally, but the government defends and pays damages.
Rather than the potent remedy portrayed in the plaintiffs’ briefs, Bivens is largely a legal relic. As the U.S. Supreme Court observed in Ziglar v. Abbasi, it belongs to an “ancien regime” under which the Court inferred damage remedies in statutes or, as in Bivens, a constitutional right, even though Congress had not created such a remedy.
Not only has the Supreme Court repeatedly refused to expand Bivens to new circumstances, it has admonished (in Abbasi and elsewhere) that it is not an appropriate remedy where the thing complained of isn’t, say, the action of a rogue line officer, but official government policy.
As Abbasi emphasized, embroiling executive branch officials in Bivens litigation implicates separation of powers concerns, as it “would require courts to interfere in an intrusive way with sensitive functions of the executive branch.”
Plaintiffs’ Federal Tort Claims Act (FTCA) pleadings are also duds. The FTCA waives the federal government’s sovereign immunity, but zero tolerance falls squarely within the FTCA’s “discretionary function” exception.
That exception is embodied in 28 U.S.C. Section 2680(a), which provides that the government bears no liability for “any claim … based upon the exercise or performance or the failure to perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
As the Supreme Court explained in U.S. v. Gaubert, the exception “prevent[s] judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”
In other words, immigration policy should be crafted by the people’s elected representatives — not activist groups via constitutional tort claims.
Finally, if there was a conspiracy, as needed for section 1985 or 1986 liability, the high-ranking Trump officials named in lawsuits are guilty of a conspiracy to enforce the Immigration and Nationality Act, which specifically authorizes each of the actions taken by them.
Now recall Judge Gee’s decision blocking Obama’s successful family detention policy. The liberal Ninth Circuit Court of Appeals mostly upheld her ruling, reversing one aspect: her conclusion that adults, as well as minors, must be released under the Flores Settlement.
The Ninth Circuit held that the Flores Settlement only prevented the government from detaining the minors, emphasizing the executive branch’s legal authority to detain aliens during immigration proceedings.
This brings it into perspective: the cabinet-level and other named Trump officials evidently “conspired” to take action specifically authorized by the Ninth Circuit! Maybe plaintiffs should amend their complaints to include the judges.
Zero tolerance was a government failure. Yet despite Democrats’ reckless spending, we are not a nation of unlimited recourses. The question becomes whether these families, many of whom entered the country illegally, deserve a taxpayer-funded windfall.
Kate Steinle’s family deserves compensation — not that it will bring Kate back. She was killed when a degenerate criminal alien, shielded by local sanctuary city policies, fired a gun near where people were walking on the San Francisco waterfront. Her family’s lawsuit was bounced from court.
What about Bambi Larson? She was bludgeoned and cut to death in her San Jose home by a violent psychopath who also was shielded from deportation by sanctuary policies. Bambi was found by her son — who likewise won’t be getting damages.
(There’s no space, of course, to mention the many people harmed by criminal illegal immigrants shielded by sanctuary city policies.)
Will Americans harmed as a result of soft on crime policies of woke DA’s get paid?
The virulent anti-police rhetoric and other actions of Black Lives Matter, a movement embraced by the U.S. government and corporate America, has contributed mightily to the recent and worrisome increase in crime.
Will those victimized in America’s new crime wave get a taxpayer-funded windfall?
And note that many of the families separated at the border will receive valuable benefits beyond cash. Most of the children, fed, clothed, and housed by the government, are already with U.S. sponsors.
And the negotiated settlement in the injunctive relief litigation gives many adults previously deemed ineligible for asylum another bite at the apple. It’s a safe bet that the left-wing activists in charge of Joe’s immigration policy will push to get them in.
From a legal standpoint, and a moral one, the amount owed by the American people over zero tolerance is zero — not a penny more.
Ken Sondik, an attorney in Zionsville, Indiana, can be reached at firstname.lastname@example.org
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