Despite the president’s initial confusion, let’s be clear about where we’ve landed: the Biden DOJ is absolutely planning to pay up to $450,000 per illegal migrant separated under the short-lived Zero Tolerance policy as part of a settlement. Biden has since recanted, shouting at a reporter that border crossers, “whether they crossed legally or illegally” deserve payments if they “lost a child” and “he’s gone.” (Fact check false: Any separation would have occurred because the parent was sent to jail for illegal crossing, so no border crossers were here “legally,” and these lawsuits are not about children who are “gone” but about lingering emotional distress despite reuniting or the opportunity to reunite.) Not a moment after President Biden originally lied and said the payments were “not going to happen,” the ACLU — one organization in the lawsuits — corrected the record. They sternly reminded the president of his “campaign promise” to pay them, and the migrants.
A campaign promise? I was unaware that was a basis for prosecutors to give taxpayer dollars to partisan organizations and migrants who enter the country illegally. Leave it to the Washington Post to spin for the administration. According to WaPo, the proposed lucrative payouts actually showed how apolitical the Biden DOJ is. As opposed to prosecuting parents for domestic terrorism, an apparent political decision, paying cash settlements to illegal migrants is politically “fraught,” and thus a sign of independence, says WaPo.
I beg to differ with such an absurd conclusion. For one, my sources tell me the cash settlement decision came from the “highest levels” of the administration. But it also fails the common sense test.
Clearly, the Biden administration does not want to fight the migrants’ claims in court — not because it is afraid it will lose, but because it knows it will win. Unlike a private company that settles a claim to limit its liability and put an end to a potential public relations disaster, here the defendant is ideologically allied with the plaintiffs. And it fears criticism from the mainstream media and the corporate law firms assisting these cases, for failing to sufficiently alleviate harm and suffering the migrants allege.
But if the DOJ settles cases it believes it will win, financially rewarding the Southern Poverty Law Center and other pro-Democrat legal organizations, it will be using federal (i.e. your) resources for political ends.
If the DOJ honestly believed that emotional distress from family separation should result in money damages, I should expect the DOJ to invite litigation from American families as well. Every day, American families are separated, purposefully by the government, not infrequently in stressful settings. One study estimates that one in 12 American kids will experience his or her parent being sent to jail. The emotional harms for these children, and parents, are the same as for migrant children. Children who have been separated from an incarcerated parent are more likely to commit crimes, experience depression and anti-social behavior, and fail in school.
But don’t hold your breath waiting for payouts to citizens because the DOJ knows the law does not create liability for government actions that create emotional distress. In particular, agencies cannot be sued for discretionary, policy-driven decisions. If the law were otherwise, there would be no end to the payouts, meaning the government would either crater under the weight of litigation, or stop providing certain services.
For the DOJ, the migrant payouts are not about the law. They are additional examples in an unsettling series of decisions from the Biden DOJ — like failing to defend Trump-era policies they disagree with, suing Georgia and Texas for straightforwardly legal election laws, labeling concerned parents domestic terrorists, and filling their ranks with Russia collusion theory hoaxers — that show the DOJ to be working, not to advance justice, but to advance liberal politics. That is devastating to a system of ordered government. No reasonable American will believe in the “rule of law” where political leanings dictate what you can get away with. The DOJ should re-read its own motto — “who prosecutes on behalf of justice” — before it’s too late.