By Carolyn Shapiro and Joanna Martin of Chicago-Kent College of law 

The cruelty of the Trump administration’s recent decision to routinely separate children from their parents when they cross the border, even if the families are seeking asylum, cannot be overstated. And Attorney General Jeff Sessions’ decision to dramatically restrict asylum eligibility, specifically identifying people fleeing gang violence and victims of domestic violence as generally ineligible, will likely lead to even more family separations, well beyond the hundreds or thousands that have already occurred.

Public outrage and opposition to this family separation practice is building. Lawyers, commentators, and activists have explained why it is unconstitutional, tantamount to torture, and not required by American immigration law. The ACLU has sued, and a federal judge recently refused to dismiss its lawsuit challenging the constitutionality of the practice. Even the American Bar Association, which does not generally take public positions on matters unrelated to the practice of law or functioning of the judicial system, weighed in with a public statement. In a letter to both Sessions and Homeland Security Secretary Kristjen Nielsen, ABA President Hilarie Bass explained why intentionally interfering with parental rights for purposes of deterring other families from coming to the United States is unconstitutional, not to mention “inhumane” and “antithetical to our values as a country.”

Unfortunately, the brutal and unnecessary separation of parents and children by our government is not new. In fact, the US government has long inflicted such separation on its own citizens in the name of enforcing immigration law, although perhaps to a lesser extent than under Trump. (As Leah Litman has masterfully demonstrated, past administrations, including the Obama administration, pursued policies and pressed legal arguments that paved the way for the Trump administration’s human rights abuses.) You may have seen the recent videos of children screaming as their parents are carted away by ICE in vans. You may have read one of the numerous stories about ICE arresting a parent simply trying to get his kids to school or caring for a child with serious medical problems. Parents who go to required check-ins with ICE often do not know if they will see their children again. Children live in terror that their parents will be disappeared.

And these children are often American citizens. According to the Chicago Tribune, “[n]early 6 million U.S. citizen children live with at least one family member in this country illegally, according to estimates from 2009-2013 census data.” And there is reason to believe that the undocumented parents of American citizen children are more likely to be detained by ICE now than ever before. Historically, ICE focused on individuals with criminal histories, individuals who failed to appear for an ICE check-in, or other aggravating factors. But since Trump took office, ICE has abandoned such priorities for immigration enforcement and ICE arrests of immigrants with no criminal history has doubled.

Once arrested by ICE, immigrants may be unable to communicate with family members at all, whether because they do not have access to telephones or because they are moved from place to place. They may be deported in a matter of days or even hours. And ICE apparently does not release the names of those it has detained. Thirty-six hours after an ICE raid in Ohio in which 114 people were arrested, and children were left stranded at schools and day cares, community groups were able to identify only 70 of the detainees.

Although some immigrants are released on bond or even on their own recognizance, many are denied that opportunity or may be unable to post whatever bond is set. ICE officers have extraordinary discretion in the early stages as to whether to release individuals for humanitarian grounds, such as that they are the sole caregivers of young children or are taking care of sick family members. But such humanitarian release is completely discretionary.

So what happens to the undocumented parents’ children if the parents are detained or deported? In many instances, if there is no other parent or relative to care for them, they may find themselves in the foster care system of whatever state they live in. In 2011 – long before Trump became president – there were already approximately 5,100 children in foster care whose parents had been detained or deported. (It’s worth noting, moreover, that those foster care systems are generally operated and at least partially funded by the states, so states may have their own interests in the federal government not precluding parents from caring for and making arrangements for their own children.)

Maybe some people think that “foster care or whatever,” to quote John Kelly, does not sound so bad. But as Luis H. Zayas, Dean of the Social Work School at the University of Texas, has documented, there is little to no coordination between the state-run child welfare systems and the federal immigration system. As a result, child welfare programs may deem children abandoned when their parents do not show up for court hearings or other mandated activities. Courts may conclude that detained immigrant parents are not cooperating with family reunification plans and terminate their parental rights – which also terminates any right the children have to maintain their relationships with their parents.

Separating parents from their children without regard for the children’s rights and interests (much less the parents’) and at risk of the destruction of the parent-child relationship is cruel, unnecessary, and, unconstitutional. The Supreme Court has long recognized that the parent-child relationship is entitled to constitutional protection. In 1923, the Court held that a state could not prohibit a parent from having his child learn a foreign language due to the parent’s interest in directing his child’s education. As recently as 2000, in Troxel v. Granville, the Court reiterated that parents have “a fundamental liberty interest … in the care, custody, and management of their child.” And although most cases involve a parent asserting his or her rights, the child has her own interest in the parent-child relationship. As the Supreme Court explained in the 1982 case Santosky v. Kramer, “the child and his parents share a vital interest in preventing erroneous termination of the natural relationship.”

Of course, constitutional rights are not absolute, and the government can constitutionally disrupt the parent-child relationship for compelling reasons. Parents and children can be separated, and parental rights can even be terminated, due to abuse or severe neglect, for example. And courts have held that the lawful deportation or detention of a parent does not generally unconstitutionally interfere with the parent-child relationship, even where the child is an American citizen.

But those cases do not reach the question of what the government must do to enable parents and children maintain their relationships. And the reasoning of those cases is instructive. They don’t deny that the relationship between an undocumented parent and a citizen child, for example, is of constitutional significance. Rather, they reason that (a) the parental deportation does not necessarily disrupt that relationship because, for example, the parent could take the child to live with them in another country; (b) there is a public interest in the enforcement of immigration law, and an incidental impact on the parent-child relationship of general enforcement does not raise constitutional concerns; and/or (c) the same kind of separation occurs when a parent is incarcerated as punishment for committing a crime.

None of those reasons can justify the current practice of snatching parents off the street when they are picking their children up at school or trying to visit their sick children in hospitals. None of these reasons can justify the practice of keeping parents incommunicado in detention pending deportation, or, for that matter, can they justify such hasty deportations that a parent cannot adequately plan for what comes next for their children. (And it should go without saying – although apparently it does not – that none of these reasons can justify removing children from their parents at the border without any plan to reunite them or even to track whose children are where.)

Let’s start with the argument that the parent-child relationship can’t override immigration law. That may be so. But the active, even vigorous, enforcement of immigration law does not require the tactics currently in use not only at the border, but also within the United States. with respect to individuals who may have been here for years or even decades. To put it plainly, immigration law does not require detention pending deportation proceedings except in limited circumstances, and it certainly does not require detention incommunicado or near-instantaneous deportation.

To the contrary, the argument that deportation itself does not unconstitutionally disrupt the parent-child relationship implies something else – that a parent who is subject to deportation will have the meaningful opportunity to make parental decisions about his or her child. Will the child come with them or will the child stay in the United States with the other parent, with relatives, or with other designated guardians? If the child stays here, what arrangements will be made for financial support, parent-child visits, and ongoing communication? Although the cases focus on the parents’ rights, we might also put it another way – the child is entitled to have her parent make those kinds of decision about her care and to have the opportunity to maintain her relationship with her parent.

This logic is borne out even where a court has rejected arguments that a particular detention has unconstitutionally interfered with parental rights, as the First Circuit did in Aguilar v. United States Immigration and Customs Enforcement. In Aguilar, the court explicitly relied on the facts that the disruption of the parent-child relationship following a workplace raid was relatively short and that “ICE took at least some measures to alleviate any resultant harm.” But the opposite may be true if, for example, ICE sets up checkpoints near schools or follows parents to hospitals where their children are being treated, where ICE holds a parent incommunicado for an extended period of time, or where the deportation happens so quickly that by the time family members hear of it, the immigrant has already left the country.

Finally, there is the relatively new argument that children and their parents are regularly separated when a parent is charged with or convicted of committing a crime. This argument is used to justify the new family separation policy at the border: since those detained undocumented parents are being prosecuted under the government’s new “zero tolerance” standard, separation is necessary. But beyond what is happening at the border, this argument does not even meaningfully apply to immigrants who have been in the United States for some time. These individuals are not generally facing incarceration because they were or may be convicted of a crime. Some of them have not been adjudicated deportable, much less have they had a deportation order entered against them. Some of them may prevail in seeking discretionary permission to stay in the United States. Some of them may turn out not to be deportable at all – even to be United States citizens.

But even as to those parents who have had valid deportation orders entered against them, the government should not act so as to prevent them from maintaining their relationships with their children. Even convicted criminals are not held incommunicado, and the Supreme Court has suggested that a prison visitation policy that precluded inmates’ minor children from visiting would violate the Eighth Amendment.

The Obama administration deported undocumented immigrants at a very high rate, and it too improperly separated parents and children. But the Trump administration pursues deportation even more indiscriminately and enthusiastically. The terror and pain that its tactics create appear to be part of the point. But there are constitutional limits, and destroying the constitutionally protected parent-child relationship is a bridge too far.

Carolyn Shapiro is an Associate Professor at IIT Chicago-Kent College of Law, where she is the founder and co-director of the Institute on the Supreme Court of the United States and the director of the Public Interest Certificate Program. She served as Illinois Solicitor General from 2014 to 2016.

Joanna Martin is a rising third-year law student at Chicago-Kent College of law and the proud daughter of Mexican immigrants. This summer Joanna is providing direct representation of detained immigrants at the Esperanza Immigrants Rights Project in Los Angeles, California. In March, Joanna co-organized a trip to Dilley, Texas where she and 12 other Chicago-Kent students volunteered at the South Texas Family Residential Center, helping women and children who are seeking asylum.

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