What’s the per-person value of those civil suits pending against the United States government for the separation of immigrant families on President Trump’s watch?
That question has significant financial and political repercussions. Reports that the Biden administration was considering a value of $450,000 per person has drawn a strong rebuke from Republicans but an editorial in yesterday’s Washington Post cautioned that revulsed jurors could award even more.
At issue here is the zero-tolerance policy set by the Trump administration in May of 2018 in which agents apprehended everyone crossing the border illegally, including those seeking asylum. This meant children accompanying adults were separated from their parents.
Where children enjoy greater legal protection under immigration law, many remained in U.S. child welfare shelters or with relatives while the adult they accompanied were prosecuted for crossing the border illegally. The Trump administration failed to build a system to track the relationships between the migrants before separating them.
The ACLU has identified about 5,500 children separated at the border during the Trump administration. Around 940 claims have been filed so far according to The New York Times.
In June of 2018, the ACLU won a nationwide injunction blocking family separations and upon filing a lawsuit in 2019, alleged:
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Thousands of children, including babies and toddlers, were ripped from their parents’ arms with little or no warning. No explanations were given as to why they were being separated.
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No answers were provided as to where the children were taken. No information was given to either the children or parents about each other’s whereabouts.
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Children were sent to facilities hundreds or thousands of miles away from their parents. The separated families were not told when — or even if — they would ever see each other again. Many children and parents did not see each other again for a year or more.
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The separated children, after being taken from their parents, were detained in punitive conditions, which included going without communication with their parents for weeks or months. During this period, parents had no idea how their children were being cared for, or by whom.
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Several parents attempted suicide, and some tragically occurred. Traumatized children were not provided any meaningful treatment to address the suffering they experienced or the lasting effects of their separation and confinement.
The putative class action for damages is now pending in the federal district court in Arizona and the certified class action – which declared the family separation policy illegal – is pending in the southern district of California.
On October 28, The Wall Street Journal was the first to report that the Biden administration is in talks to settle those cases for around $450,000 per person. When asked about this on November 3, the President said the report was garbage.
Doocy: “Do you think that that might be an incentive for people to come over illegally?
Biden, “If you guys keep sending that garbage out, yeah. But it’s not true.”
Doocy: “So this is a garbage report,”
Biden: “Yeah, four hundred and fifty thousand dollars per person. Is that what you’re saying?”
Doocy: “That were separated from their family at the border, under the last administration.”
Biden: “That’s not gonna happen.”
A day later, deputy White House spokeswoman Karine Jean-Pierre said the president was “perfectly comfortable” with the DOJ settling with families currently suing the US government and that his comment of “garbage” was only responding to the $450,000 amount.
Two days later the President was asked again:
“If in fact, because of the outrageous behavior of the last administration, you coming across the border, whether it was legal or illegal, and you lost your child, you lost your child, it’s gone, you deserve some kind of compensation no matter what the circumstance. What that will be, I have no idea. I have no idea,” Biden said.
Republican pushback has been swift and strong. Among those denouncing the idea of paying the migrants is Senator Tom Cotton from Arkansas who said the payments will be excessive and only incentivize more illegal crossings.
But The Washington Post has a different take. In an editorial this week, the Post said betting how a jury might react to testimony regarding trauma suffered by very small children might be a roll of the dice:
“We agree that paying individual migrants $450,000 apiece — or nearly $1 million for a single mother and her child — would be a jaw-dropping sum. It far exceeds U.S. government payouts to other grievously wronged groups, including Japanese Americans interned during World War II, or African Americans with syphilis who were deceived and left untreated by government doctors in the Tuskegee study, in the mid-20th century. Yet given that family separation ignited universal revulsion, who can be sure that contemporary jurors wouldn’t be so similarly disgusted that they might award a tidy sum of, say, $1 million to each traumatized migrant?”
I found the comments appended to the Post editorial emblematic of a steep divide on the issue. Some said the real culprit here is not the I.S. Government, but the migrant parents who put their children in harm’s way. Others saw potential injustice in allowing anyone to be compensated for an act they saw as illegal. Others pointed out that military widows in the U.S. Only received $100,000 in comparison.
And on the politics of the matter, another said that if you pay migrants that amount of money, you may as well hand Donald Trump the keys to the White House in 2024.
In my opinion, that last point is the most prescient. Compensating these families may indeed be necessary, and settling in advance of a trial will alleviate the risk of an even bigger payout feared by The Washington Post. But don’t underestimate the political messaging that will come from Republicans in the midterms and next presidential election if big checks are cut to migrant families. This is just the sort of issue that motivates Trump’s base.
Michael Smerconish
Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.
