U.S. border agents made more than 50,000 arrests in May for the third month in a row, the Department of Homeland Security said Wednesday, an indication that escalating enforcement tactics by the Trump administration — including separating migrant parents from their children — has not had an immediate deterrent effect.
DHS took 51,912 migrants into custody in May, nearly three times the number detained in May 2017, a period when illegal immigration plunged following [President] Trump’s inauguration.
Arrests at the border this spring have jumped to their highest levels since Trump took office, and the reversal has left the president furious at Homeland Security Secretary Kirstjen Nielsen and other aides who he believes aren’t doing enough to stop the trend.
Trump and Attorney General Jeff Sessions will no doubt claim the problem is that they have not been draconian enough. (If Republicans spent as much on some domestic program as they are spending on the border and got no positive results, they wouldn’t hesitate to scrap it, I am certain.)
Ripping minors from their parents’ arms hasn’t lessened the number of minors coming over the border. (“U.S. agents detained 6,405 underage migrants in May, up from 4,302 last month. That category includes many teenagers and children who are seeking to reunite with a parent already present in the United States.”)
Meanwhile, on the political front, Trump’s racist and erroneous suggestions that undocumented immigrants are mostly criminals might delight his hard-core base, but he’s not winning over skeptics. He is also enraging immigration activists and regular voters. In a just-completed Economist-YouGov poll, voters disapprove of the separation policy by a 51 percent to 32 percent margin; 38 percent strongly disapprove. (Unpopularity seems to be the defining characteristic of the Trump administration’s various immigration policies. The wall remains hugely unpopular, and while Congress and the White House continue to stall on a fix for the “dreamers,” 80 percent to 90 percent of Americans in a wide array of polls favor allowing them to stay.)
And now — as with the Muslim ban and sanctuary cities (Trump suffered yet another legal setback on Wednesday when a federal court judge in Philadelphia ruled that “the city’s refusal to help enforce immigration laws is based on policies that are reasonable, rational, and equitable”), the courts are being asked to intervene to stop the child separation policy. A federal court judge in California ruled Wednesday against the administration in a case contending that the forced separation policy is a violation of the due process clause. The court explained:
The parties do not dispute the following bedrock principles. The Constitution protects everyone within the territory of the United States, regardless of citizenship. … What Plaintiffs challenge is the Government’s separation of migrant parents and their minor children when both are held in immigration detention and when there has been no showing the parent is unfit or poses a danger to the child. Plaintiffs assert separation of parents and minor children under such circumstances violates their due process rights.
Moreover, at least in this case, “each of the named Plaintiffs is seeking asylum,” which heightens the burden on the government to justify its actions. (“Arriving on United States soil with one’s minor child to pursue relief extended by U.S. law — as well as international law to which the United States has acceded — calls out for careful assessment of how governmental actors treat such people and whether constitutional protections should apply.”) Even worse, the government is applying that standard even when the parents “have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an [immigration judge] in their removal proceedings.”
In holding that the plaintiffs made out a credible due process claim, the court used remarkably harsh language:
These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity.
Appeals will follow, of course, and the president will no doubt excoriate the courts. Nevertheless, we see once more that Trump’s immigration policies are not only ineffective, unpopular and offensive but very likely unconstitutional. (The American Civil Liberties Union will now seek a nationwide injunction and class certification for all those impacted by the child separation policy.) Never before has it been more evident that Trump and his anti-immigration ideologues are entirely out of step with America’s values and constitutional tradition.