The images were disturbing—children crying, suffering, sitting in what amount to cages. The Trump administration was in its “zero tolerance” zone and stripping children from their immigrant parents as they crossed the border. Looking back, there seemed to be an assumption that no one would notice or care that Latin American children were being treated to subhuman treatment by United States authorities. To their credit, Americans’ response was immediate: this is an outrage—what can we do? Surprisingly, there was little that could be done other than political pressure. Luckily, for the sake of the children this time, public shaming seems to be changing the policy, but what happens next time?
The reason the law is weak in this arena is that the United States remains the only country in the world not to ratify the UN Convention on the Rights of the Child. This emergency of basic human rights for children was a reminder that we are the only country that has refused to pledge meaningful protection of children’s rights.
The Convention requires all signatories’ courts to consider the “best interest” of the child, which would be quite a departure from what the administration has been doing on the border. It also contains copious language that would protect these children. Here is the language that directly condemns the zero-tolerance policy: signatories must “undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.” And then there is the child’s “right to know and be cared for by his or her parents.” And, even more directly to the point: signatories “shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” Finally: signatories “shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
It would be an understatement to say that the Trump administration violated these rules of fundamental decency. When Jeff Sessions justified the inhumane treatment of children at the border on the basis of Bible verses, he was making a vain attempt to enrobe an indefensible practice in God’s approval. Here is his statement: “Persons who violate the law of our nation are subject to prosecution. I would cite to you the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order. Orderly and lawful processes are good in themselves and protect the weak and lawful.” A few Bible verses weren’t going to allay the reactions of decent Americans, though—including conservative religious leaders and those in his own faith . This wasn’t about religion. It was about children’s civil rights, or the lack thereof here in the United States.
As Americans, we typically solve such disputes in the courts but that is a long shot this time. The question is what laws were at play in this scenario?
The Laws Governing the Separation Policy
First, there was the law governing the practice. It was the Trump administration’s “zero tolerance” policy that led to the outrageous abuse of children at the border. Until today, Trump claimed he had no choice but to arrest the parents and remove the children, as though prior administrations had done the same thing. It wasn’t true. Today he found the power in his own pen as he signed an order reneging on the practice. It is a parsimonious rollback, though, as Trump may have signed to stop the practice going into the future, but there is little reason to think that the children already harmed are now safe. It signals an intent not to separate children from parents in the future while permitting the ongoing separate housing of children and parents already destroyed by the Trump policy.
The Constitution and the Children
Second, what laws could be deployed to protect these defenseless children? Despite the frequent assertion by some conservatives, immigrants including individuals just crossing the border do have constitutional rights. They have rights to “life, liberty, or property,” or due process, and to equal protection under the Fourteenth Amendment and a right against illegal search and seizure under the Fifth Amendment. This is because the Constitution extends these rights to “persons,” not only citizens. The problem for immigrants is that there is a 100-mile (from the border) rule that gives federal agents broad latitude to search, and there is not a strong due process right to avoid expedited expulsion. Thus, although immigrants do have rights, they are not terribly strong.
But the one touchstone of the United States Constitution is that the government may not act irrationally or arbitrarily. It is a constitutional violation when the government acts out of unjustifiable reasons or has no rational explanation. Perhaps on that theory, some of the affected children have claims against the government, especially the ones not yet reunited with their parents. There are lawsuits that have been filed but no emergency injunction has been issued, which signals a relatively weak right given the depth of trauma the government has inflicted.
It appears that kids are still being shunted off into tent cities and shelters in 17 cities including New York and Michigan. Yet, their journey is not at an end. Despite Trump’s signature repealing the practice into the future, the administration is not “grandfathering in” the 2,300 children already separated from their parents. This shows just how hard-hearted this administration is toward children. It’s not racing to fix what it did wrong. Instead, it is hoping Americans will move on and not notice kids are still at risk from their federal government’s misdeeds.
If a judge can be persuaded that the Trump administration has acted arbitrarily toward these children there is some light. But with the policy rescinded, the argument likely will be watered down to one for damages as opposed to injunctive relief.
The constitutional rights of children are evolving, but not as strong as they need to be for this situation. They cannot be made martyrs to their parents’ religious beliefs under Prince v. Massachusetts, but they can still have their education truncated by parents invoking religious justifications in Wisconsin v. Yoder. Their rights of privacy exist but are significantly limited with the outer limit established by Hodgson v. Minnesota. True, they cannot be sentenced to death for any crime, Roper v. Simmons, and they cannot be subjected to life in prison, Miller v. Alabama. But their rights of free speech at school have not been expansive in recent jurisprudence, Morse v. Frederick. Thus, the generic arguments from due process and equal protection account for the most likely winning arguments. And one never knows whether the increasingly conservative Supreme Court will reduce the scope of such rights and particularly when children are involved. It is simply a fact that conservative and especially conservative religious parents argue for “parental rights” that are intended to keep children’s rights at a minimum. Indeed, these arguments have been used to block the ratification of the Convention to date.
The Trump Administration has further ensured that children can’t win by ending funding for free legal representation for the children at the time that it escalated “zero-tolerance” to divide parents from their children. That’s right, babies and toddlers are being forced into court apart from their parents with no legal representation to make their case. Thus, a lack of legal representation compounds the difficult constitutional arguments that must be made to redress the horrific actions of this federal government.
The Convention and the Children
Ratification of the Convention would give the separated children clearer rights to invoke. As detailed above, the Convention secures rights to have cases affecting children guided by what is in the “best interest” of the child, along with specific rights to be with their parents and not to be separated from them. Those are rights not yet addressed clearly by the Supreme Court.
Without it, the United Nations can do little more than engage in verbal attacks as it did when it rightly criticized the practice as a violation of children’s rights. It was correct it is a clear violation in every country in the world, except the United States. In what appears to be a bid to deflect attention from the label of “rights violator” with respect to these children, the administration then pulled the United States out of the UN’s Human Rights Council. That was an ironic move, to say the least.
If the Convention were approved by 2/3 of the Senate and signed by a president, it would then be officially ratified and become the “supreme law” of the land, co-equal with the Constitution according to the Supremacy Clause. It would govern federal, state, and local governments. The fate of children in the future would be secure against arbitrary and cruel government actions like Trump’s, because specific rights necessary to the protection of children would be delineated. Emergency injunctions would be more easily obtained when the government steps out of line as it did here, and children would not be at the mercy of vague and evolving interpretations of the Constitution, or the politics of whether the Supreme Court is leaning right or left.
Children deserve, nay require, the protections of the Convention for the Rights of the Child. The people have spoken but they must continue to be vigilant. Sign this petition to show the Senate what is right for children.
At one time there were only two holdouts: Somalia and the United States. Then Somalia signed. This country is better than its federal government’s recent actions at the border and as a people we need to demand the Convention’s ratification to deter all administrations, including this one, from the temptation to treat children as property, as I discussed here, and as pawns in an adult game of power brinksmanship. As American’s vehement rejections of the zero-tolerance policy became so deafening that even Trump had to back down, it became clear: we know better.