California Attorney General Xavier Becerra said Thursday that he will join nine other states suing the Trump administration over its "cruel and unlawful policy of forcibly separating children from their parents without any legitimate justification."
The lawsuit, which is still being crafted, will seek to create a process for reunifying more than 2,300 children who have already been taken from their parents, Becerra stated. It will challenge the underlying policy of separating children from their families as a violation of children's due process rights.
That policy was halted Wednesday by President Trump, who issued an executive order instructing immigration officials to continue to criminally prosecute anyone who crosses the border illegally but to keep families together in detention.
Even with that change in policy, Becerra said, questions remain about what will happen to the families that have already been separated, and what exactly the executive order will do. Becerra called the order "empty and meaningless" and a "political stunt."
“Children belong with their families, not alone and fearful in metal cages. We are filing this lawsuit because ripping children from their parents is unlawful, wrong and heartless,” Becerra said in a written statement. "These children, their parents, and people around the world need answers regarding what comes next. This policy could have devastating consequences on children’s health and well-being. Dividing families who are being persecuted and fleeing violence is simply appalling. Separating children from their families is a new low, even for the Trump Administration.”
Becerra said he would co-lead a coalition of states filing the suit, along with Washington Attorney General Bob Ferguson. Becerra and Ferguson were among 21 Democratic attorneys general that sent a letter two days ago to the Trump administration demanding that they end the policy of separating families.
Since then, the executive order was issued. UC Hastings law professor Rory Little said the lawsuit probably hasn't been filed yet because the situation is changing so quickly.
"They've gotta still be thinking about it, because the scene is still changing every day -- the president issued this executive order so now they can't just say, 'You need to end your policy' — the response of the Trump people was going to be, 'Oh we did end it.' So now they have to attack the executive order," Little said.
He said the states likely do have standing to bring the lawsuit, in part because many of these children are within the states that plan to file the suit. But, he said, there are several other court cases currently playing out that could impact the attorneys general's case.
That includes a case in Los Angeles federal court. On Thursday, the U.S. Department of Justice asked a federal court to modify a two-decade-old settlement that prohibits the Department of Homeland Security from holding children for more than 20 days in immigration detention; Trump wants changes to that settlement, because his administration is seeking to detain undocumented families indefinitely as their cases play out in immigration court.
Little said another case — the lawsuit by Becerra and other states over Trump's 2017 travel ban — could also impact the legal fight over these undocumented children.
"The travel ban decision is going to add some further law on the topic of what can states do and what can the the federal government do in regards to immigration — so that's going to be a continuing battle," he said.
The ACLU has also filed suit in federal court in San Diego, challenging the separation of families by the Homeland Security officials.
Little said there's not a lot of legal precedent for what Becerra and the other attorneys general are arguing: That taking kids from their parents violates the due process rights guaranteed under the Constitution of parents to be with their children. But, he said, that doesn't mean it won't be successful.
"I am not sure we’ve got any law yet that talks about a fundamental right of a child not to be separated from their parents, but it sure strikes a chord. It strikes sort of a common-sense chord that we shouldn't do it. That's why the outrage has been so bipartisan on this," Little said. "The area of immigration is traditionally a federal area of law, and so it's very complex to figure out, well, where's the line — between what the federal government can do to control its borders, versus what the people of the state can do when the impact is on them."