The Memo: Much-criticized Trump policy puts Biden in a vise

A plan to compensate parents and children who were separated by the Trump administration at the southern border is causing President Biden real political problems, amid Republican opposition and a broader conservative backlash. 

The fact that Biden made a notable misstep in responding to the criticism has deepened the administration’s trouble.

But all those factors are fueling frustration among advocates for the families who were separated. To them, the case amounts to a traumatic but conventional legal case which has fallen victim to politicization and demagoguery.

“Everyone is jumping the gun and making assumptions about what is happening here — and that’s how I know it is more about politics than these families,” Jess Morales Rocketto of Families Belong Together, an advocacy group, told this column.

The Trump-era policy, introduced in May 2018, saw child separations rise precipitously at the southern border. Around 3,000 migrant children were separated from their parents at the height of the crisis.

The policy caused an international political firestorm. Images of distressed children in cages flashed around the world. The then-president ended the policy within a couple of months. 

Trump’s defenders noted that some child separations had also happened under former President Obama. But such separations were rarer during Obama’s time, and did not involve the element of intentionality that characterized the Trump approach.

The issue has burst back into fiery life since The Wall Street Journal reported on Oct. 28 that the Biden administration was in talks to settle cases brought by the victims of the policy for around $450,000 per person — a sum that could result in some families receiving close to $1 million.

According to the Journal, around 940 claims have been filed so far. The newspaper noted that, if the $450,000 figure is correct, the total bill for settlements could be in the region of $1 billion.

The issue has burned up conservative media ever since.

Biden referred to reports of the settlements as “garbage” last week.

But the White House walked that statement back the next day, with principal deputy press secretary Karine Jean-Pierre saying that the president was in fact “perfectly comfortable” with settling the cases “if it saves taxpayer dollars and puts the disastrous history of the previous administration’s use of zero tolerance and family separation behind us.”

Jean-Pierre also said that the Department of Justice (DOJ) had told the plaintiffs that the $450,000 figure was higher than “a settlement can land.” Biden’s “garbage” comment, she added, was “reacting to … the dollar figure that was mentioned.”

A group of Senate Republicans, led by Sen. Steve Daines (R-Mont.), has introduced an amendment aimed at blocking the National Defense Authorization Act from being used to pay for the compensation.

Daines asserted that the reported plan meant that “Biden’s open border policies have reached a new crazy level.”

Objectively speaking, however, much of the conservative rhetoric seems to ignore or elide some crucial issues.

Much Republican criticism has cast Bide as making “payments” to “illegal immigrants” as if the president is simply getting the national check book out for anyone in the nation without authorization.

On Twitter, Sen. Ted Cruz (R-Texas) said that Biden “wants to give $450k to every illegal immigrant.”

Sen. Bill Cassidy (R-La.), joining the Daines statement, said that it was “absurd” that “the Biden administration wants to pay illegal migrants $450,000 for crossing the border and getting caught.”

Sen. Tom Cotton (R-Ark.) another sponsor of the Daines effort, compared the payments to paying “damages to a burglar who broke into your home.”

Yet the angry rhetoric avoids some realities. 

The DOJ is facing almost 1,000 claims for damages. Many of those claims come from children who were taken from their parents without it being clear they would ever be reunited. Some still have not been reunited. 

Medical experts at the time said the policy was tantamount to child abuse. A report last year by the nonprofit group Physicians for Human Rights said that it constituted torture.

As a point of fact, therefore, the government’s exposure was caused by the Trump policy. And the cases will have to be adjudicated one way or another. 

To be sure, the DOJ could take its chances in court. But given that the plaintiffs are seeking an average of $3.4 million per family according to the Journal, that would be a costly gamble. The government — and by extension the taxpayer — would also have to shoulder the legal costs of going to court as well.

“For all I know $450,000 is not the right number,” said Jesse Bless, the director of federal litigation for the American Immigration Lawyers Association. “But I do know that the government would be better served by having the opportunity to settle this for an amount within the bounds of reason. Lawyers do this all the time.”

Advocates like Morales Rocketto insist there is a moral dimension to the debate too.

“I just reject all these hyper-polarized discussions,” she said. “It’s about what we owe these children and their parents, to try to make this right so it is not a stain on the American project forever.”

Yet for the Biden administration, it is another controversy adding to a list of political problems. 

Immigration has long been one of the issues on which the president polls worst. A poll conducted last week, for a conservative group, found almost 70 percent of likely voters were opposed to the proposed settlements.

The president is caught between a rock and a hard place, trying to remedy the harm caused by a policy he never supported.

The Memo is a reported column by Niall Stanage.