The Morning Dispatch: The Debate Over Paying Families Separated at the Border

Happy Tuesday! It’s Justin Fields’ league, and the rest of the NFL is just living in it. (Yes, we know the Bears still lost.)

Quick Hits: Today’s Top Stories

• The Justice Department announced Monday it has indicted a 22-year-old Ukrainian national and a 28-year-old Russian national for their involvement in a series of ransomware attacks on businesses and government entities—including this summer’s Kaseya attack—and is seeking to extradite the 22-year-old from Poland where he was arrested. The Justice Department also said it seized more than $6 million in ransom payments, and the Treasury Department on Monday ​​sanctioned Russian cryptocurrency exchange Chatex for allegedly facilitating those payments.

• Reuters reported Monday that—according to satellite imagery from late October—China’s military has constructed mock-ups of several different U.S. warships in the Taklamakan Desert near Xinjiang, potentially as training targets. At least one aircraft carrier and two Arleigh Burke-class guided missile destroyers are seen in the desert, where China has previously tested ballistic missiles. Asked about the report Monday, Chinese Foreign Ministry Spokesman Wang Wenbin said he’s “not aware of the situation you mentioned.”

• Federal Reserve Gov. Randal Quarles announced Monday he will resign from the central bank’s seven-member board of governors at the end of December, opening up another vacancy for President Joe Biden to fill. Quarles—nominated by former President Donald Trump in 2017—had just completed a four-year term as the Fed’s vice chairman for bank supervision.

• The January 6 select committee announced Monday it had issued subpoenas to six additional advisers to former President Trump, including John Eastman, Jason Miller, Michael Flynn, and Bill Stepien.

Biden Administration Weighs Paying Families Who Were Separated at the Border

It’s been about a week and a half since the Wall Street Journal first reported the Biden administration was in the process of negotiating settlements of up to $450,000 per person with families separated at the southern border under the Trump administration’s zero-tolerance policy, and the White House seems to finally be cohering around a single message.

When first asked about the story by Fox News’ Peter Doocy on November 3, President Biden dismissed the report as “garbage,” declaring that payments of $450,000 per person are “not going to happen.” But less than 24 hours later, the White House clarified this dismissal. 

“What [the president] was reacting to was the dollar figure that you mentioned to him yesterday,” White House deputy press secretary Karine Jean-Pierre told Doocy in a press briefing the following day. “If it saves taxpayer dollars and puts the disastrous history of the previous administration’s use of zero tolerance and family separation behind us, the president is perfectly comfortable with the Department of Justice settling with the individuals and families who are currently in litigation with the U.S. government.”

Jean-Pierre’s comments refer to a class action lawsuit filed by the American Civil Liberties Union (ACLU) against the Trump administration in October 2019 seeking compensation from the federal government on behalf of the immigrant children and their parents “cruelly and inhumanely separated from each other” along the United States’ southern border in 2017 and 2018.

The lawsuit—which has grown to include about 940 claimants—alleges that separated children and parents were not told when or if they would see each other again, and that the policy inflicted “irreparable psychological and physical damage” on migrants for “no legitimate reason.” The complaint also declared government officials “were unable to identify which children belonged to which parents” once reunification efforts began.

The Trump administration began separating children from their families in El Paso, Texas, as part of a pilot program in 2017 aimed at deterring illegal immigration at the southern border, and that pilot program was extended along the entire U.S.-Mexico border in April 2018 as part of the administration’s “zero tolerance” policy. The policy, according to its advocates within the administration, would allow enforcement officials to detain illegal immigrants who arrived at the border with a child, and thus disincentivize illegal immigrants and coyotes from bringing children knowing that families would be released into the country. As we wrote to you a year ago:

The legal rationale [for child separation] dates back to the 1997 Flores v. Reno court settlement, which stipulates that children in immigration custody cannot be detained for longer than 20 days. In order for the Trump administration to detain adults for longer than 20 days, therefore, the children had to be separated from the parents.

Former President Trump repealed the policy via executive order in June 2018, but his administration confirmed the following year that roughly 5,500 children were separated from their families before that happened—and the parents of about 545 hadn’t been located as of October 2020. (A Department of Homeland Security spokesperson told The Dispatch at the time that many of the parents of those remaining 545 children did not want “such reunification to occur.”)

Biden has taken a different approach to the families separated under the policy, signing an executive order his second week in office that established a task force to aid in the reunification process. And over the past two weeks, it’s become clear the administration plans to offer affected families some form of payment, even if the exact figure isn’t settled yet.

“If in fact, because of the outrageous behavior of the last administration, you were coming across the border—whether it was legal or illegal—and you lost your child, you deserve some kind of compensation, no matter what the circumstance,” Biden said over the weekend, cleaning up his earlier “garbage” remarks. “What that will be, I have no idea.”

After Biden publicly balked at the leaked $450,000 per person number, the Justice Department reportedly told ACLU attorneys the parties can “continue to negotiate,” but that the reported figure is “higher than anywhere that settlement can land.” ACLU Executive Director Anthony Romero acknowledged as much on the record. “The president’s comments and congressional pushback do appear to have affected settlement negotiations, which were admittedly in flux,” he told NBC News last week.

Unlike Biden’s initial opposition to the proposal, congressional objections are not going anywhere. Republicans have been harshly critical of any proposed settlement, arguing such payments would both incentivize additional illegal immigration at a time when border crossings are at record highs and be an unfair use of American taxpayer dollars.

“It would be unthinkable to pay damages to a burglar who broke into your home for the ‘psychological trauma’ they endured during the crime,” Arkansas Sen. Tom Cotton said last week in endorsing an amendment to the 2022 National Defense Authorization Act that would prohibit the use of federal funds for such payments. “And yet the Biden administration wants to reward migrants who illegally entered our country with up to $450,000 each for just that reason.”

Sen. John Cornyn of Texas authored a letter to Biden alongside his 11 Republican Senate Judiciary Committee colleagues expressing concern over the reported proposals. “Our nation has been made stronger by the generations of legal immigrants that have contributed to our country and achieved the American Dream,” it read. “But rewarding illegal immigration with financial payments runs counter to our laws and would only serve to encourage more lawlessness at our border.”

There are myriad ethical considerations at play here. But from a financial perspective, the prudence of any such settlements ultimately hinges upon whether one believes the ACLU litigation has any merit. If it does, settling out of court could save the government both time and money. If it doesn’t, hundreds of millions of taxpayer dollars in preemptive settlements is a high price to pay.

Andrew McCarthy—a Republican former assistant U.S. attorney—counts himself in the latter camp. “The ACLU’s theory, which the Biden administration is indulging, is that the Trump administration’s faithful enforcement of federal law created an actionable tort,” he wrote for National Review last week. “The fact that Biden, for demagogic political purposes, called the Trump administration’s actions ‘criminal’ does not make them so. … Even if the law has been enforced more exactingly than, from a humanitarian perspective, the circumstances may have warranted, it cannot be an actionable tort to execute Congress’s laws as written.”

But more libertarian-minded immigration and legal experts believe the ACLU has a case, in large part because of what happened to children after they were separated from their families, with countless parents alleging lasting psychological trauma on behalf of their kids. The federal government received thousands of complaints of migrant children facing physical, emotional, and sexual abuse while they were in foster homes and detention centers run or coordinated by the Department of Health and Human Services. 

“His personality has changed,” Ever Reyes Mejía said of his 3-year-old son following a three-month separation in 2018. “Inside, he carries like a sadness.”

“You don’t have to be a lawyer to understand why this is evil and why they deserve compensation,” George Mason University law professor Ilya Somin told The Dispatch. “If this were your family, would you really accept even $450,000 in exchange for this kind of abuse and cruelty?”

Alex Nowrasteh, the director of immigration studies at the Cato Institute, also believes the ACLU has a case. “The plaintiffs are basically presenting eight claims, and a total of five of them are violations of the Fifth Amendment, including various due process and equal protection violations,” he told The Dispatch. “Another one is a violation of the Fourth Amendment, which is a violation of unreasonable search and seizures. And the remaining two are under federal laws that prohibit conspiracy to interfere with civil rights and the refusal or neglect to prevent aid in preventing such a conspiracy.”

As Nicole Narea pointed out in a piece for Vox last week, there are some historical parallels relevant to today’s settlement debate—though not identical. In 1983, the National Council for Japanese Americans Redress (NCJAR) filed a $27.5 billion class action lawsuit against the United States government seeking $220,000 in damages for the approximately 120,000 Japanese Americans placed in internment camps during the Franklin Delano Roosevelt administration.

The federal government did not settle, and—after a lengthy legal battle that went up to the Supreme Court—the NCJAR lost. But the high-profile case drew attention to the history of Japanese American internment and built political momentum for a legislative remedy. In 1988, then-President Ronald Reagan signed into law the Civil Liberties Act, a bill in which Congress awarded $20,000 (about $46,000 in today’s dollars) to tens of thousands of people interned during World War II and apologized for the “grave injustice” the nation had perpetrated.

“The legislation that I am about to sign provides for a restitution payment to each of the 60,000 surviving Japanese-Americans of the 120,000 who were relocated or detained,” Reagan said upon signing the legislation. “Yet no payment can make up for those lost years. So, what is most important in this bill has less to do with property than with honor. For here we admit a wrong; here we reaffirm our commitment as a nation to equal justice under the law.”

Worth Your Time

• NPR’s Tim Mak has a new book out about the downfall of the National Rifle Association (NRA), and Politico published an excerpt on Monday detailing how the decades-old organization decided to eschew the legislative process in the wake of the Sandy Hook shooting and double down on gun rights as identity politics. “At 5:30 a.m. one morning in early 2013, soon after a gunman in Sandy Hook killed 26 people, National Rifle Association lobbyist Abra Belke was woken up by a phone call,” Mak writes. “She was shocked to hear a U.S. senator on the line angrily shouting, ‘Why would you do this?’ The lawmaker was Sen. Mary Landrieu, a Democrat from a red state, saying she had just been put in an impossible situation by the NRA. The subject of the call was an ad produced by the NRA’s public relations firm, Ackerman McQueen, which had targeted President Obama’s daughters: ‘Are the president’s kids more important than yours?’ the narrator asked. ‘Then why is he skeptical about putting armed security in our schools when his kids are protected by armed guards at their school? … He’s just another elitist hypocrite.’ NRA HQ had released the spot without telling their lobbyists about it first. … The ad was another example of the tension between the NRA’s messaging strategists at Ackerman McQueen, and the Institute for Legislative Action (ILA), the NRA’s lobbying arm. While the lobbyists were on the Hill trying to make deals, Ack-Mac and NRA CEO Wayne LaPierre were cooking up this divisive advertisement. Good for the base, bad for legislation.”

• While Glenn Youngkin’s victory in Virginia last week led many progressives to circle the wagons around critical race theory and impugn any Republican concerns as bad-faith (or worse), others engaged in introspection following the electoral backlash. “Electoral necessity shouldn’t be a prerequisite for progressives to engage in internal criticism,” Eric Levitz writes in New York Magazine. “And it seems to me that some of the practices that Rufo & Co. have dubbed ‘CRT’ do warrant the left’s disavowal, less on grounds of political pragmatism than on those of ideological principle. … A decent number of progressive groups and well-intentioned school districts do seem to be hiring quack consultants to dispense laughable race malarkey and recipes for organizational self-sabotage. Which is bad. And progressives shouldn’t hesitate to say so. Our institutions should not be patronizing the dissemination of bizarre racial stereotypes, or modes of ostensibly anti-racist discourse that credit ‘white culture’ for ‘the scientific method.’ This would be true even if this stuff came with no political downside. But it is even more true now that the right is exploiting slideshows on ‘color group collectivism’ to discredit the progressive movement’s broader agenda for racial justice.”

• The use of “workarounds” may be pivotal in engineering, but former Indiana Gov. Mitch Daniels believes they’re corrosive when it comes to governance. “Ideas for redesigning the machinery of self-governance are always in order, and sometimes badly needed. But discarding or violating rules while they are still in effect is corrosive of the trust on which all depends,” he writes for the Washington Post, referencing the OSHA’s vaccine/testing mandate for large businesses, the Federal Trade Commission’s jettisoning of a formal rule on vertical acquisitions, and Democrats’ efforts to cram immigration reform into the reconciliation process. Daniels concludes by quoting Russian chess champion and human rights advocate Garry Kasparov on Russia’s post-Soviet relapse into autocracy: “What we didn’t understand is that democracy is a process, not a result. The moment you go against the process, the moment you accept that your guy, who has the best intentions in this world, can violate the rules, can rig the result with a little bit of a tweak—it starts with little tweaks here and there—then that’s it.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• On Monday’s episode of Advisory Opinions, Sarah and David engage in some more Supreme Court talk before turning to the legal fate of the OSHA’s large employer vaccine mandate. Plus, jury selection in the Ahmaud Arbery case and John Durham’s indictment of Igor Danchenko in the special counsel’s investigation into the origins of the Trump/Russia collusion probe.

• Oliver Wiseman attended last week’s National Conservatism Conference in Orlando. He came away with a few questions, including a big one: Has the group’s moment passed?

Let Us Know

Setting aside the merit of the ACLU’s lawsuit, do you believe the federal government has an ethical obligation to atone for the Trump administration’s zero tolerance policy? If so, what should it do?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).