Trump's Family Separations Are Unconstitutional - details

Trump’s Family Separations Are Unconstitutional
The courts must award damages to families torn apart by the policy.

First of all, the 14th Amendment applies to every “person,” not just citizens: “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court made that clear in 2001’s Zadvydas v. Davis, when it ruled that an alien’s detention would be considered illegal if it violated the Constitution.

Removing children from parents without due process is a constitutional violation under two Supreme Court cases: 1971’s Stanley v. Illinois and 1982’s Santosky v. Kramer. In both cases, the court held that parents have a constitutional right to the care and custody of their children under the 14th Amendment. This includes the right to due process if children are removed from their care.

... Parents thus do not lose their rights to due process under the 14th Amendment because they have been jailed or arrested. Unless she is declared unfit in a fair hearing, a parent who is arrested has the right to designate a caretaker or appoint a guardian. Federal laws governing funding for adoptions provide that if a child is in foster care for 15 of the past 22 months because of parental incarceration, the state can petition for parental rights to be terminated so the child can be freed for adoption. This is done in a court of law, following the law and procedures for fundamental fairness. The Trump administration did not follow these processes in rolling out its child-separation policy.

There is a fundamental problem with the Trump administration labeling people “criminals” before any sort of adjudication. Separation of powers forbids law enforcement from making determinations of guilt. Therefore, any attempt to punish people for a crime prior to adjudication violates the separation-of-powers doctrine and due process.

But even if parents and children are guilty of misdemeanors, the Eighth Amendment prohibits the infliction of “cruel and unusual punishment,” and it too applies to all “persons.” Trump administration officials have emphasized that the policy of family separation is a punishment designed as a deterrent. But the “crime” of illegal entry is a nonviolent misdemeanor. The administration decided that mere arrest for that misdemeanor was cause for family separation with a significant chance of no reunification.

https://slate.com/news-and-politics/2018/06/trumps-family-separation-policy-is-unconstitutional-its-time-for-the-courts-to-award-damages.html