New ground for impeachment hearings: cruel and unconstitutional imprisonment of children and their families

We have added a new ground to our call for Congress to start hearings on whether to impeach President Trump: cruel and unconstitutional imprisonment of adults and children.

Background

As we noted in our statement earlier this week, under Trump’s dictate, several thousand children have been seized from their families—who were often told that their children were just “bathing”—and warehoused in mass orphanages indefinitely while their parents are left unaware of their whereabouts. Some are just a few months old; many, including children below school age, are forced to sleep on the floor in cages.

This treatment of the children is so shocking to the conscience that Trump and his administration cannot even formulate a plausible governmental interest. Rather, the government is tearing young children away from their parents for no reason other than to deliberately increase the suffering of migrant families. The administration’s stated goal for the policy of breaking up migrant families and imprisoning the children was to deter immigration—in other words, as a form of punishment. But many of these families have not violated any laws: they lawfully presented themselves to border officers at designated ports of arrival and applied for asylum, in accordance with U.S. law authorizing such applications and the Universal Declaration of Human Rights, and Trump has no legitimate interest in “deterring” lawful asylum applications. (Nor is there a legitimate interest in inflicting such cruelty as punishment for illegal entry, which is a nonviolent misdemeanor in the same legal category as misuse of the seal of the President of the United States, for example, on golf tees at a Trump golf course.) Instead, Trump describes his own goals in terms that evoke Nazi propaganda: to punish immigrants who “infest” the country.

Legal analysis

Trump’s action has violated the fundamental human rights of both parents and children in contravention of the Constitution. Regardless of the circumstances of entry, once inside the United States, both children and parents are protected by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The Supreme Court has long held that removing children from their parents without due process of law violates the Due Process Clause. As the Supreme Court has recognized, “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the] Court.”

Imprisoning the children also violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Even setting aside the asylum applicants described above (who violated no law by duly applying under a statutory process which the Trump administration has no lawful interest in deterring), punishing parents for misdemeanor illegal entry by imprisoning their children violates the Eighth Amendment because it is grossly out of proportion to the parents’ offense and punishes the children themselves for conduct for which they are not responsible. For similar reasons, the United Nations advised the Trump administration that its policy violates international law.

Earlier this week, in response to massive public outcry, Trump retreated from his policy by a tiny fraction. According to his recent executive order, the government will no longer separate children from families—they will detain them together. But family detention for more than a brief period is also unconstitutional, and the government is legally required, as part of a court settlement after years of litigation, not to detain families for more than 20 days. Furthermore, Trump’s executive order does nothing to reunite the families already separated. Again, the United Nations’ human rights experts warned that this executive order fails to remedy the violations.

And nothing can repair the psychological trauma that Trump’s action has already inflicted on the children. For comparison, a U.S. soldier deployed in the Central American countries from which most of these children come could be court-martialed under the Uniform Code of Military Justice for the offense of child endangerment, punishable by up to five years’ confinement. This offense  occurs when a servicemember had a duty to care for a certain child but then “endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence.” Given the cruelty of the separations themselves, and the chaotic implementation in which children (including some with physical or mental disabilities) have been warehoused, the mental and physical harm that will emerge from this policy will be incalculable.

High crimes and misdemeanors

The constitutional standard of “high crimes and misdemeanors” is not precisely defined, but Professor Cass Sunstein has summarized it as including “illegal acts of a serious kind and magnitude and also acts that, whether or not technically illegal, amount to an egregious abuse of office.” As noted above, Trump’s actions are a gross violation of human rights, in violation of multiple provisions of the U.S. Constitution. But even setting aside the legal doctrines, his actions—perhaps more than any other offense for which articles of impeachment have been approved against any U.S. president—fit the criterion, proposed by Professor Charles Black in 1974 on the eve of Richard Nixon’s impeachment, of being “plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.”

To find precedent for Trump’s actions, we must reach back to the darkest days of U.S. history, including internment camps for Japanese-Americans, Native American boarding schools, and slave markets. With a president who granted his very first pardon to a racist sheriff who had deliberately violated a court order to stop violating the constitutional rights of Latinos, and in an era when federal immigration enforcement agents, emboldened by Trump’s hateful rhetoric, have repeatedly detained U.S. citizens, sometimes merely for speaking Spanish, Trump’s use of what may fairly be described as concentration camps shocks the conscience.

On the surface, Trump’s policy may not resemble the types of straight-out-of-the-textbook impeachable offenses, such as receiving emoluments from foreign powers, obstruction of justice, or abuse of the pardon power, which often involve a rogue president, acting alone or with a small coterie of henchmen. Here, Trump has embroiled massive federal agencies in his unconstitutional scheme. But presidents are responsible in impeachment for the actions of their subordinates that they command or ratify, and it would be perverse to say that the president could be impeached for running a scheme out of the Oval Office, but not for implementing a policy through the apparatus of government under his command.

As noted constitutional law expert Jack Balkin once observed, “the claim that after [over two centuries] America is guaranteed to be ‘dictator-proof’ is entirely too sanguine.” The Founders provided a check against tyranny: the power of impeachment. It is time for Congress to start using it against Donald Trump.

 

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