By now, everyone is aware of the anti-immigration policy of the Trump administration commonly referred to as “zero tolerance.” To summarize, this policy (announced on May 7, 2018, by the Attorney General Jeff Sessions) provided that all adults entering the U.S. illegally would be subject to criminal prosecution. When accompanied by a minor child, the policy of this president was that the child would be separated from the parent. Since then, thousands of migrant children were separated from their parents.
This policy is brutal. It is barbaric. And it is disgusting. But in today’s political climate, it is not enough to affix such labels or to revert to name-calling. To counter the disturbingly ignorant mass appeal of policies like this requires public education. Otherwise, the outrage over such sickening policies will be limited to those (usually in the legal community) who are aware of the essential constitutional values at stake and others who happen to be on the other side of the political divide. Setting aside political differences, to clarify exactly why this president’s policy is offensive, it is important to focus on the fundamental constitutional values at the heart of this conflict, namely, the constitutional right known as “family integrity.”
The following is a classic description of our societal values underlying that constitutional right taken from the decision of the Connecticut Supreme Court in In re Juvenile Appeal 83-CD, 189 Conn. 276, 284 (1983).
“The United States Supreme Court has frequently emphasized the constitutional importance of family integrity. ‘The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “[r]ights far more precious … than property rights.” “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.’ (Citations omitted.) Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). It must be stressed, however, that the right to family integrity is not a right of the parents alone, but “encompasses the reciprocal rights of both parents and children. It is the interest of the parent in the “companionship, care, custody and management of his or her children,” Stanley v. Illinois, [supra], and of the children in not being dislocated from the “emotional attachments that derive from the intimacy of daily association,” with the parent, [Smith v.] Organization of Foster Families [for Equality and Reform], 431 U.S. 816, 844, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977),” Duchense v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right to family integrity includes “the most essential and basic aspect of familial privacy—the right of the family to remain together without the coercive interference of the awesome power of the state.” Duchesne v. Sugarman, supra.
It would seem from the extent of the public outrage over the separation of children and parents that the president would rectify the situation. Yet, the best he could do was to issue a weak and ambiguous Executive Order which, much like his original policy, reflects a grotesque ignorance of the above-stated fundamental constitutional values. In response to the crisis this president’s actions created, 17 states have filed a complaint against the federal government. In a previously filed case, the Federal Court for the Southern District of California has certified a class action and on June 26, issued a classwide preliminary injunction. Ms. L. v. U.S. Immigration and Customs Enforcement, Case No. 18cv0428 DMS (MDD) (June 26, 2018).
Rendering that decision, the court found that the policy and the executive order “shock the conscience.” After summarizing the government’s woefully inadequate arrangements for reuniting family members or, indeed, for parents even to know where there children were being housed, the court found: “The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency as property.” Citing a quote in Santosky v. Kramer, 455 U.S. 745, 758-59 (1982), from Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18 (1981), the federal court noted: “It is plain beyond the need for multiple citation that a natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”
The brutality of this administration’s policies is clear when viewed in the context of the following excerpts from multiple sources regarding the damage to children when forcibly separated from parents quoted by the Connecticut Supreme Court in In re Juvenile Appeal 83-CD cited above.
“Studies indicate that the best interests of the child are usually served by keeping the child in the home with his or her parents. Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments.” Institute of Judicial Administration—American Bar Association, Juvenile Justice Standards Project, Standards Relating to Abuse and Neglect, p. 45 (Tentative draft, 1977) (IJA-ABA, STDS). The love and attention not only of parents, but also of siblings, which is available in the home environment, cannot be provided by the state.
“Uninterrupted home life ‘comports … with each child’s biological and psychological need for unthreatened and unbroken continuity of care by his parents. No other animal is for so long a time after birth in so helpless a state that its survival depends upon continuous nurture by an adult. Although breaking or weakening the ties to the responsible and responsive adults may have different consequences for children of different ages, there is little doubt that such breaches in the familial bond will be detrimental to a child’s well-being.” (Footnotes omitted.) Goldstein, “Medical Care for the Child at Risk: On State Supervision of Parental Autonomy,” 86 Yale Law Journal, 645, 649 (1977). Separation from his or her parents for any significant time has damaging effects on a child, even when the parents are minimally supportive of the child’s needs. See Goldstein, Freud and Solnit, “Before the Best Interests of the Child,” pp. 6-12 (1979); Wald, “State Intervention on Behalf of ‘Neglected’ Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights,” 28 Stan. L. Rev. 623 (1976); Goldstein, Freud and Solnit, “Beyond the Best Interests of the Child,” p. 20 (1973). “Even when placed in good environments, which is often not the case, they suffer anxiety and depression from being separated from their parents, they are forced to deal with new caretakers, playmates, school teachers, etc. As a result they often suffer emotional damage and their development is delayed.” Wald, “Thinking About Public Policy Toward Abuse and Neglect of Children,” 78 Mich. L. Rev. 645, 662 (1980). Id.
As a California federal court has found, the injury to children caused by this president’s policy is “irreparable.” Although the government argued in that case that there was a possibility that an injunction would harm their ability to “enforce the criminal and immigration laws,” the court found an injunction “would do nothing of the sort.”
It is patently obvious that this president’s primary focus is on fear-mongering. He has packaged and sold his messages to the general public in tweets and sound bites like “zero tolerance.” As our legal history has very clearly established, however, where the rights of families and children are concerned, tolerance is particularly important. As the federal court noted: “We are a country of laws, and of compassion.” Citing The Refugee Act, PL 96-212, 94 Stat.102 (1980), that court added: “We have plainly stated our intent to treat refugees with an ordered process, and benevolence, by codifying principles of asylum.”
To the immense credit of lawyers, judges, and our judicial system, children and families have now gained at least a modicum of protection from this president’s assault on the constitutional right of family integrity. In the face of this president’s ill-conceived, self-serving, propagandist tactics, we must continue every effort to educate others regarding the fundamental constitutional values that serve to protect us all.