This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here, here, and here.

In a prior post, I drew a connection between the administration’s refusal to release undocumented minors from its custody so that the minors can obtain the abortions they are entitled to under state law and the recent news that the administration has been unable to follow up on the whereabouts of over 1000 children who it has released into the custody of private sponsors. As I noted, it is odd that the Trump administration might be unable to follow up on the location of children it releases to sponsors while also *insisting on releasing minor women to sponsors* before allowing the women to obtain abortions. The oddity is further underscored by the fact that the administration has insisted, with the agreement of two judges, that releasing the women into the custody of private sponsors is a way to put the women in “better places” to obtain their abortions. As I wrote, “The apparent reality of DHHS’s sponsor process is not one that reliably puts minor children in ‘better places.’ It does not even reliably guarantee the basic safety of minor children.”

The administration’s policy of forcibly separating children from their parents, even when the parents present at the border with viable asylum claims, also highlights some of the shortcomings with the legal justifications for the administration’s position in Azar v. Garza. Garza is the case challenging the administration’s refusal to allow shelters to release from custody undocumented, minor women so that the women can obtain abortions. In Garza, the government has avoided taking the position that the young women have any due process rights at all. But that argument has made its way into an amicus brief in support of the administration, as well as other legal arguments on its behalf. One version of the argument is that undocumented persons who are recently apprehended at the border have some due process rights, but not all of them. In particular, they either have procedural due process rights, but not substantive ones, or they have “negative” liberty rights but not “affirmative” ones.

In either case, however, it is hard to distinguish the administration’s forced separation of families from its refusal to release women from the custody of private shelters. As the oral argument and briefing in the case challenging family separation highlights, the constitutional challenge to forced family separation includes a substantive due process challenge.  Just last night, the district court in Ms. L. v. ICE rejected the government's motion to dismiss and ruled that the plaintiffs had stated a substantive due process challenge, reasoning that the administration's forcible separation is "brutal, offensive, and fails to comport with traditional notions of fair play and decency." But if persons apprehended at the border have no substantive due process rights at all, as some of the administration’s defenders in Garza argue, then that would have resolved that particular challenge to the administration’s forced separation of families. In Garza, as in Jennings v. Rodriguez, we are told not to worry about the implications of the government’s position that undocumented persons have no substantive due process rights, because the government would never do anything that bad. The testimony in the family separation case (Ms. L v. ICE) and photos of detention centers notwithstanding, I guess.

The forced separation of families also highlights some of the slipperiness with the claim that persons apprehended at the border have negative liberty rights but not affirmative ones. In Garza, of course, it is far from clear why the young women are asserting “affirmative” liberty rights, when all they are asking is for the government to release the women from its physical custody (the women have transportation, money, and doctors lined up; they just need to get out the door). And yet the administration’s defenders argue that the women are seeking an affirmative entitlement—access to a procedure, and to health care.

We can play that same game of words with respect to family separation: Are the children asking for a negative liberty right (not to be stripped away from their parents), or an affirmative one (to remain with their parents at a family detention center, or to be released on recognizance with their family)? In portions of DOJ’s opposition to the permanent injunction in Ms. L, DOJ attempts to frame the plaintiffs’ request as an affirmative liberty right. From page 17 of the opposition to the motion for an injunction, for example: “Ms. L … is unlikely to succeed: there is no constitutional right of arriving aliens to be detained with their children.” Or on page 14 of the motion to dismiss: “Plaintiffs ask this Court to recognize a constitutional right of immigration detainees to be detained with their children.” The slippage between the two categories does not suggest the dividing line is a stable or coherent one, or that it is likely to ward off some grotesque, untoward results.

One last point: Part of the outcry over the administration’s forced separation of families has included the claim that forcible family separation is something that happens in The Handmaid’s Tale or Nazi Germany, and not America. That’s not quite right; as Martha Jones vividly made clear, forcibly separating parents from children is part of our history. It was done to slaves and to Native Americans, among other groups. That fact helps to underscore a few themes that have been covered on Take Care and elsewhere. One is a point that Richard Primus made with respect to the entry ban—our institutions are capable of producing evil. We know this because they have produced evil in the past, including evils we now recognize as legally wrong. At the time, people (including those who imagine themselves to be good) did nothing to stop it and remained silent. Sometimes, they even enabled it. It is easier to imagine that we would have done the right thing then, but harder to understand that we might not be doing the right thing now.

@LeahLitman

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