Children’s Rights Softly Emerge in the Midst of the Trump Administration’s Heartless Separation of Children from their Parents at the Border

Posted in: Juvenile Law

The litigation over the heartless separation of children from their parents at the border has been focused on the rights of the adults, the parents. That is par for the course in our society. Adults prefer and protect adults on a routine basis, and children tend to receive second-order status even on a good day. That is not to say that children don’t have emerging rights. They do. As I discussed here, they have a patchwork of rights.

In the same column, I pointed out that they would be better protected were the United States to finally ratify the Convention for the Rights of the Child, which the rest of the world already ratified. The Convention actually identifies the right of a child not to be separated from their parents (assuming no abuse). That is such a clear fit that this debacle would have been blocked and ended much more quickly by the federal courts. But the Senate has yet to do the right thing by children with the Convention.

A New Decision Finds the Children Do Have Constitutional Rights

Therefore, we are back to seeking out constitutional rights for these children in the ongoing spectacle of inhumane treatment of families and children. Remarkably, a new district court decision finds that the children in these extreme circumstances do have rights based in the Constitution.

A lawsuit was filed on behalf of two children in Connecticut arguing that their constitutional rights were violated and they should receive immediate reunification and support that is geared to the trauma that they have suffered. Judge Victor Bolden explained that “the parties agree that a constitutional violation occurred when the Government separated children from their parents—both on the basis of substantive due process, as the separation deprived the children of their right to family integrity, and procedural due process, as J.S.R. and V.F.B. were given no notice and no fair opportunity for a hearing before being separated from their parents.” The court agreed, saying that forcible removal without due process violated the child’s constitutional rights. Its description of the basis for the violation is chilling: “The Government failed to provide the children with notice or a hearing, instead taking their parents, while distracting the children.” J.S.R. v. Sessions. That is not how good people with good will treat children, to say the least.

This small pinprick of light in the context of one of America’s darkest moments is encouraging evidence of the increasing ability of this culture to see children as “persons” and not just property or appendages of their parents. Due process rights may not be arbitrarily denied to persons. These border family separations are nothing but arbitrary. They are also, of course, cruel and inhumane. Judge Bolden rightly saw in this scenario constitutional violations and irreparable harm.

This decision is not only important because it adds a precedent recognizing children’s constitutional rights but also because the judge acknowledges the trauma of tearing apart families and its impact on the children. In other words, these children are humans.

The Children’s Suffering Moves to the Background as Trump Sides with Putin, Alarming the World

One tragic element of this moment in history is that this inhumane treatment of children has been drowned out by Donald Trump’s extraordinary, unpatriotic behavior with Vladimir Putin. The world was shocked to see an American president create moral equivalency between the United States and the Russian repressive regime, and his failure to condemn Putin’s direct attack on our democracy through interference with the 2016 election continuing to this day. The fallout was swift and consuming. The condemnation came from many corners. Only the most gullible couldn’t wonder what exactly Putin has on Trump. Suspecting that the American president is in cahoots with the Russian president is so novel that our attention has been inexorably drawn back to it again and again.

How are we to focus on anything else? Yet, while we suspect that America’s democracy is at extreme risk, over 2,500 children continue to suffer. Both are a horror. We cannot let these children and their needs fade into the background. Nor can we let this issue die out once the administration finally reunites them, as it is required to do by July 26. This must never happen again. Ever.

No one should fool themselves that this administration won’t try this again. Of course it will, if no one is watching. It doesn’t particularly care about children (as compared to the unborn) and especially the children of non-citizens. There are pathways to ensure this does not happen again—the Senate could ratify the Convention or Congress could pass simple legislation that would ban such separations.

This Congress has had a difficult time carrying out its constitutionally-appointed role as a check on this president’s power. But this is an issue on which even Republicans have expressed criticism of the administration. Along with the Putin debacle, the cruel mistreatment of children hints at the possibility of both sides of the aisle cooperating … finally. If the phoenix of our constitutional order arises from the ashes of these debacles, well, that would finally be a bit of good news.

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