How a judge can punish Trump administration over separated families

A federal judge may decide this week to impose some kind of punishment against the Trump administration if he determines that it failed to meet his deadlines to reunite children separated from their parents.

While the image of Attorney General Jeff Sessions or Department of Homeland Security Secretary Kirstjen Nielsen being carted off to jail is unlikely, U.S. District Judge Dana Sabraw does have several options to force the government to speed up the reuinification process. 

Legal experts say the judge could threaten contempt of court — and jail time — against lower-ranking members of federal agencies, could order hefty fines, or could order the agency heads to appear in court as a form of public shaming.

Stephen Yale-Loehr, an immigration law professor at Cornell Law School, said even those sanctions would be difficult to enforce because they would surely draw government appeals. That’s why a more symbolic finding of contempt of court, without much punishment attached, may be the limit of Sabraw’s ruling.

“The court of public opinion, and the admonition by the judge, may be about as much as anyone can practically do at this point,” said Yale-Loehr, who co-authored an amicus brief against the government in the lawsuit.

Sabraw last month ordered the Trump administration to reunite nearly 3,000 children separated from their families, most under the president’s so-called “zero tolerance” policy that went into full effect in May. 

He ordered that 63 children under age 5 be reunited by Tuesday night. All other minors must be reunited by July 26. 

Department of Justice lawyers asked for an extension of Tuesday’s deadline. They argue that several federal agencies have mobilized as quickly as possible, but are facing a daunting challenge that includes complicated cases. During a court hearing Tuesday, Sabraw didn’t budge, telling the government that his deadlines were firm, not merely “aspirational goals.”

He then asked an ACLU attorney who led the lawsuit to file his suggestions for possible punishment, which Sabraw is expected to rule on during a court hearing Friday. If he rules that the government did not meet his deadline, many are hoping that Sabraw throws top Trump administration officials into jail.

“Having that hanging over their heads is a great incentive to take a whole agency and move quickly,” said Ira Kurzban, a Miami-based immigration attorney who co-authored the amicus brief against the government.

Stephen Legomsky, a professor emeritus at Washington University School of Law in St. Louis, said the judge could instead threaten to jail lower-ranking officials who carried out the family separations or struggled to reunite the families.

But Kurzban, Legomsky and other legal experts say such threats are highly unlikely given the legal challenges they would prompt and the public spectacle it would create. U.S. courts have long endorsed “sovereign immunity,” a legal principle that generally insulates government officials from lawsuits. Congress has created some exceptions, but those are rare. 

Alexander Stern, a California attorney who recently polled a half-dozen law professors on the possibility of jail time for Trump administration officials, said they all agreed that seeking jail time for cabinet secretaries would only distract from accomplishing the goal of reuniting all 3,000 families.

“Sessions is a very powerful man,” said Stern, founder of the legal research group, Attorney IO. “Trying to throw him in jail would be unprecedented. You’d have 40 percent of the country seeing that as a constitutional crisis. If the judge sees a pathway to getting most of what he wants in a reasonable amount of time, I think he’d choose that.”

Another option for Sabraw is to fine the government. He could order a certain amount each day that it remains in violation of his order, or for each child that remains separated from their parent.

While it may seem counterproductive for one arm of the government (the judicial branch) to receive money from another arm of the government (the executive branch), there could be a way to use those fines to help the separated families.

Legomsky said there are legal procedures that allow a judge to direct money collected through fines to private groups assisting victims of a class action lawsuit. “The fund would have to be specifically earmarked for use in helping the reunified families recover from the trauma that the government has caused them,” he said.

The challenge facing Sabraw is that both of those options — jailing or fining federal officials — are incredibly rare.

Nicholas Parrillo, a Yale Law School professor, wrote a Harvard Law Review article in January on the history of contempt and had to go back to the 1950s to find examples of judges even threatening to imprison agency heads. And while judges have imposed fines on federal agencies more recently, Parrillo found that the mere threat of the fine usually prompted the government to settle the dispute before it had to pay.

“The rarity is partly because these kinds of sanctions run up against uncertainties about whether they’re legal and prudent against the federal government, but it’s also because public officials and government attorneys have considered it shameful to be found in contempt – sanction or no sanction – and they’ve sought to head off that humiliation by working hard to convince the judge they’re doing all they can to comply,” Parrillo said.

Another option for Sabraw is ordering the heads of government agencies to fly to San Diego and appear in his courtroom to explain the actions of their agencies. Kurzban said that would only be symbolic, but could work as a way of embarrassing the Trump administration and prompting it to reunify families faster.

“The point would be (for Sabraw to say) ‘The buck stops with you,'” Kurzban said.

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