The Wall Street Journal broke the story, that the Department of Justice was “in talks” to provide compensation to families that were separated at the border.
The Biden administration is in talks to offer immigrant families that were separated during the Trump administration around $450,000 a person in compensation, according to people familiar with the matter, as several agencies work to resolve lawsuits filed on behalf of parents and children who say the government subjected them to lasting psychological trauma.
That wasn’t $450,000 per family, but per person, so that a family could receive compensation well in excess of a million dollars. These talks came as a result of suits filed on behalf of some of the separated families.
The American Civil Liberties Union, which represents families in one of the lawsuits, has identified about 5,500 children separated at the border over the course of the Trump administration, citing figures provided to it by the government. The number of families eligible under the potential settlement is expected to be smaller, the people said, as government officials aren’t sure how many will come forward. Around 940 claims have so far been filed by the families, the people said.
The total potential payout could be $1 billion or more.
If suits are filed against the government, it’s entirely understandable that there would be discussion within the DoJ about settling the suits, just as would be the case with any other action against the government. Except in this case, there are some distinguishing factors. On the one hand, separating families, particularly taking infants away from mothers, and then “losing” the children because of government incompetence and neglect.
On the other hand, this was an outgrowth of “victims” knowingly engaging in unlawful conduct, taking huge risks with the lives of these children. The fraught politics of unlawful border crossings aside, if parents were prepared to risk the death of their children to come to America, did they not assume the risk of a less-than-humanitarian reception when they were caught by Border Patrol agents? Were they not willing to take the chance that their unlawful border crossing would not go smoothly?
“President Biden has agreed that the family separation policy is a historic moral stain on our nation that must be fully remedied,” said Lee Gelernt, deputy director of the ACLU’s immigrant-rights project and a lead negotiator on one of the lawsuits. “That remedy must include not only meaningful monetary compensation, but a pathway to remain in the country.”
Is that what President Biden agreed? Not according to Biden.
President Biden says his administration will not financially compensate families who were separated at the border with up to $450,000 in damages, rejecting reports about the hundreds of thousands of dollars in payments as “garbage.”
Was the ACLU making this up as it went along?
“President Biden may not have been fully briefed about the actions of his very own Justice Department as it carefully deliberated and considered the crimes committed against thousands of families separated from their children as an intentional governmental policy,” ACLU Executive Director Anthony D. Romero said in a statement. “But if he follows through on what he said, the president is abandoning a core campaign promise to do justice for the thousands of separated families.”
When the president says it’s not going to happen, that it’s “garbage,” it puts the spin of “not fully briefed” into a tailspin. But Karine Jean-Pierre, the White House principal deputy press secretary, “explained” Biden’s statement.
[T]he president is “perfectly comfortable” with the Justice Department “settling with the individuals and families who are currently in litigation with the U.S. government.” She deferred further comment to the Justice Department. However, after being pressed by a Fox News reporter, Jean-Pierre said the president’s comments on Wednesday were in reaction to “the dollar figure that you mentioned to him.”
Does this mean that the administration will not compensate anyone who isn’t in litigation or that the administration is willing to pay individuals and families whether the ACLU has taken up their case or not, but not in the amount of $450,000 per person?
After asked [sic] to further elaborate on Biden’s Wednesday comment on the DOJ’s plans to negotiate these payments, Jean-Pierre said the president “believes in the department’s independence.”
“That’s something he has been very clear about,” she said. “The Department of Justice should be independent.”
In a Thursday statement to The Washington Post, Romero confirmed Jean-Pierre’s assessment, saying the Justice Department said “the settlement numbers for separated families were higher than where the settlement could land.”
For anyone who has been involved in a suit against the United States, both this discussion and the numbers might be astounding. The government has no tradition of being sympathetic to sad stories of bad things it does, whether to its own citizens or those who cross the border without authorization. It’s similarly not particularly free with paying out money, the price of toilet seats for battleships notwithstanding. Try winning a Bivens action where the government’s agents engaged in egregious conduct against aninnocent American citizen, a taxpayer, and see how much empathy you get from DoJ.
Then again, snatching children, infants, from the arms of mothers was incomprehensible and disgraceful. Reluctant as I am to introduce the vagary of morality to law, this does qualify as a “moral stain” on a nation, with its manifestly incompetent handling by “losing” children exacerbating the nightmare. But does that mean compensation is the solution, and if so, in what amount?
If this is merely a matter of settling lawsuits the government is poised to lose, then it would be understandable that it comes out of DoJ and Biden might not be involved in either the negotiations or a policy decision of what the appropriate settlement amount should be. But when this leaves the courtroom and becomes a broad policy decision, to compensate separated families whether they’re parties to litigation or not, then somebody ought to fully brief the president as he’s going to be responsible for it, and to the Americans who didn’t received a similar level of empathy from their own government.
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