Tonight, I have an update for you on the Trump administration’s lawsuit against California’s state sanctuary laws. This one, so far, is going as observers expected – in other words, not well. A federal judge on July 5, 2018 refused to grant the Justice Department a preliminary injunction against California’s statute prohibiting state and local law enforcement officials from sharing information about criminal aliens in their custody with federal officials. The judge also declined to grant a preliminary injunction against the California law allowing state inspections of local and privately run jails, which depends on getting access to federal records about prisoners. The judge did, however, block parts of a third law, including provisions that tried to ban private employers from cooperating with federal immigration officials on immigration raids and other matters. So, as observers expected, the strongest part of the Justice Department’s case was upheld, at least for now. This is all preliminary, not final, and the case goes forward. The judge was sympathetic to the anti-commandeering argument which prevents the federal government from forcing state and local officials to help enforce federal laws. The judge said “refusing to help is not the same as impeding” and that standing aside is not the same as standing in the way.
In May 2018, the Trump administration announced a “zero tolerance” policy under which all adults entering the United States illegally would be subject to criminal prosecution and all minor children would be separated from their parents. In June, in response to public pressure, the President issued an executive order ending the practice of separating families. But the order did not address the reunification of more than 2,000 children already separated from their parents. Prior to the executive order, a federal judge in San Diego found that the illegal aliens entering the United States under the circumstances presented have “substantive due process rights to family integrity” under the 5th Amendment to the U.S. Constitution. After the executive order, the judge issued a preliminary injunction giving the administration up to 30 days to reunite all children affected by the “zero tolerance” policy with their parents.
The Trump administration had argued unsuccessfully that families separated at the border when the parents claim asylum have no constitutional right to remain together. But in his first ruling, the judge talked about the “sacred bond between parent and child” and said he found the practice of family separation inhumane. Observers have said there is a due process “right of family integrity” dating from Supreme Court cases in the early 20th Century.
The Flores agreement that has gotten so much publicity lately, among other things, stipulates that children coming across the border illegally accompanied by their parents have to be released within 20 days. The Trump administration said the Flores agreement is the reason it could not keep families together – the parents are detained indefinitely but the kids are supposed to be placed in 20 days.
Last I heard, the Trump administration is looking for space on military bases to detain families together. The administration says this would satisfy both the Flores agreement and the San Diego judge’s order. The judge in San Diego recently said “nothing in his order takes away the government’s discretion to either detain or release parents in immigration custody; keeping families together is the key.”
What’s odd is that the Flores case – which gave rise to the Flores agreement – specifically found there is NO due process right for children of parents detained for deportation hearings to be placed with their parents, close relatives, or legal guardians. So it’s conceivable that higher courts could reverse the district court judge’s findings, but I personally doubt the government will take the case that far.