Above Photo: From Attorneyio.com
“Just following orders” is not a defense to violating the rights of migrants
Yesterday marked the first deadline for the Trump administration to reunify migrant children under five with their families. Yet, Immigration and Customs Enforcement (ICE) has failed to return even half of the children by the deadline. This has sparked a legal debate as to what consequences there are for administration officials who disobey judicial rulings designed to prevent serious harms to migrant children and their parents.
We consulted with top law professors from around the country to assess what penalties there may be for ICE officers. We also explore what impact the nomination by Trump of Judge Brett Kavanaugh to the Supreme Court could have.
This report concludes that there is a major potential risk of personal liability for individual ICE officers under current law for disobeying court ordered deadlines and procedures. Further, a Cornell law professor has mentioned to us that Cornell Law School is actively investigating a potential lawsuit to hold the appropriate people accountable.
However, Judge Kavanaugh has expressed emphatic concern with fining officers individually, and he may be in a position to change the Supreme Court’s position on such fines. Judge Kavanaugh has disagreed with his colleagues on the D.C. Circuit Court of Appeals on this issue, and in one majority opinion his colleagues accused Judge Kavanaugh of “doomsaying”[1] about the harms of officer penalties.
Kavanaugh has repeatedly found law enforcement officers to be immune from suit, arguing it was not clear at the time in various cases that officers did anything unconstitutional. This includes severe police beatings and one case where roughly 1,600 women arrested for non-violent non-drug offenses (e.g. traffic stops) were subject to visual body-cavity strip searches when men were not subject to them. This is despite finding that the searches were of a “particularly invasive type” and only applied to women. If a lawsuit against law enforcement heads to the Supreme Court and Kavanaugh is confirmed, his shoddy record of protecting police may lead to a divided court protecting members of ICE.
Law professor contributors to this report include:
Prof. Cristina M. Rodríguez of Yale Law School, who clerked for Justice Sandra Day O’Connor of the U.S. Supreme Court;
Prof. Noah Feldman of Harvard Law School, who clerked for Justice David H. Souter of the U.S. Supreme Court;
Prof. Louis Seidman of Georgetown Law, who clerked for Justice Thurgood Marshall of the U.S. Supreme Court;
Prof. Seth Kreimer of University of Pennsylvania, who serves as the American Civil Liberties Union, Philadelphia Chapter, Chair of the Legal Committee;
Prof. Jaclyn Kelley-Widmer of Cornell Law School, who clerked at the San Francisco Immigration Court through the Department of Justice Honors Program; and
Prof. James E. Pfander of Northwestern’s Pritzker School of Law, who served as chair of both the federal courts and civil procedure sections of the Association of American Law Schools.
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