FILE – In this Sunday, June 17, 2018, photo provided by U.S. Customs and Border Protection, people who have been taken into custody related to cases of illegal entry into the United States rest in one of the cages at a facility in McAllen, Texas.
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…
Authored by Sophie Ryan