Look, Donald Trump is an idiot. We all know that. It’s not so much that he’s ignorant, he is arrogantly ignorant. He personifies the worst-case Dunning-Kruger effect. Previously the most perfect example of this was uttered a mere 40 days or so into his presidency as he announced (again) his intention to repeal Obamacare:
Now, I have to tell you, it’s an unbelievably complex subject. Nobody knew health care could be so complicated.
Slow clap, Donald.
There are, of course, many more. But few of his quotes manage to simultaneously proclaim his ignorance and dismiss expertise so grandly and so succinctly. Yet it seems Trump is determined to keep trying for better and better examples. Pithier. More ignorant. More dismissive of professionals who spend their lives devoted to a craft.
Judge Flores, whoever you may be, that decision is a disaster for our country
may not seem to everyone a higher achievement than his quote on healthcare policy. But to those who practice law, it must at least rival the previous quote in dismissive arrogance, and it does manage to surpass it in brevity. In addition to this, it makes more explicit the cruelty implicit in so many of his statements and actions. The new quote references the constitutional requirement to limit detentions of immigrant children to 20 day. That requirement, the details of which were hashed out over years, is found in the Flores v. Reno Settlement Agreement. Trump’s arrogant ignorance will serve one positive purpose today, however: it will give us all a chance to discuss this important bulwark against violations of the constitutional rights of non-citizen children within US territory.
This settlement’s specific requirements (such as limiting detentions to no more than 20 days) derive from the general requirements found in the Bill of Rights that protect our freedoms from diminution absent due process, and even with due process deny the government power to inflict cruel and unusual punishments. Jenny Flores, a child detained by the Reagan administration, led a class action suit to limit the amount of time a child legally applying for asylum or who was found illegally residing within the borders of the US could be held. The case has gone through several names, as the Flores suit was brought in the 80s against Reagan’s then-Attorney General and the INS. The name of the case retains the form Flores v. (A.G. et. al.), though the name of the AG rotates as previous occupants leave the office and new ones are confirmed and the INS no longer exists, with its functions being distributed between the DHS and the ORR by legislation passed by congress in the panicked aftermath of 9/11. Early in the case the 9th Circuit ruled that the INS detention/release regime was unconstitutional on its face, and the Bush 41 administration appealed. The Supreme Court heard arguments on this challenge in October of 1992 while Bush was still president but decided it in 1993 after Clinton had become president and Janet Reno had been confirmed as his new AG. The decision in that SCOTUS case is thus titled Janet Reno, A.G. et. al. v. Flores et. al. – or just Reno v. Flores.
SCOUTS overruled the 9th Circuit and held that under the test for a facial violation of the constitution – which requires that there can never be any set of conditions under which the INS regulations passed constitution muster – Flores could not prevail. However this left open the very real possibility that the INS regulations would lose a separate challenge to their regulations based on how they operate in the real world. Such a so-called “as applied” challenge does not require that a plaintiff prove there is no possible way for a regulation to be enforced constitutionally. Rather, a plaintiff must merely show that constitutional violations under the policy are neither rare, nor isolated, nor idiosyncratic. If the policy encourages actions which constitute constitutional violations even while it permits fully constitutional actions within its framework, it can easily fail the “as applied” challenge. At this point, the details of exactly whom the government detains, their ages, their vulnerabilities, their access to family, the conditions of their confinement, and the total effect of the policy upon those children all become issues before the court which might determine exactly how frequently the government was seen to be violating the rights of children and thus whether the entire regulation failed and ultimately what changes to the policy must be made in order to prevent the government from systematically violating the rights of the children it detains.
Now this is a vastly larger and more complicated set of questions than merely, “Is it possible to act constitutionally while following INS policy?” The courts, understandably, did not want to sit in judgement of question after question, with each small decision incrementally affecting each later decision in additive and complex ways. An appeal in such a case might find an error with one bit of reasoning which would then necessarily force reconsideration of all subsequent questions affected by the answer to the misjudged question. Passing such a case up and down the hierarchy of the federal judiciary would be in no one’s interest. So, the courts asked the parties to attempt to negotiate a resolution.
In that effort, the two sides informally consulted and formally took testimony and evidence from child development experts, education experts, pediatricians, child psychiatrists, child psychologists, and social workers. Taking the best available scientific studies into account and then filtering these through the judgement of the experts, lawyers for immigrants and lawyers for the federal government analyzed past cases resolving similar (or at least related) constitutional violations and attempted to determine just how much harm to children was constitutionally tolerable given the government’s obvious interest in securing borders. Eventually they came to agreement during the time Janet Reno was Clinton’s Attorney General. The Flores v. Reno settlement, however, quickly became simply Flores, as changing Attorneys General made references to the full case name inconsistent and inconvenient.
The Flores case is not over. The case remains before the court whose role is now to supervise the settlement agreement, ensuring its provisions are kept. Over the years different judges have been involved at different times and at different levels. As it was approved by the court, it is not easy for the government to withdraw from the settlement. Additionally, if the government did manage to withdraw, it would then be immediately subject to litigation on the “as applied” lawsuit. Since that litigation could easily take decades to resolve without a negotiated settlement and the government may not violate constitutional rights in the interim, the most likely recourse for the plaintiffs at that point would be to move to enjoin the government from violating the settlement until after the litigation is resolved. Since the settlement has two years of history and there was a large body of evidence and expert opinion that rights of children were being violated before the settlement, this motion would likely be granted.
This means that even should the government officially withdraw from the settlement, it would likely have the exact same requirements imposed injunctively for far longer than the remainder of Trump’s term. Flores, then, is here to stay.
Trump, however, doesn’t like that. He hates the requirements of Flores, not least because the settlement makes clear that his family separation policy violates the requirements of the constitution – something that without Flores would likely be easy to prove but take years to make its way through the courts. For Trump, an impatient and short term thinker when he thinks at all, imposing his family separation policy for a couple years is more than enough. Thus to the mind of our current president, Flores may as well be permanent. The resulting inability to capture and harm children enrages him. And it is in this state of rage that Trump announced to another mid-term campaign rally the quote I referenced at the beginning of this overlong exposition:
Judge Flores, whoever you may be, that decision is a disaster for our country.
On what basis should we judge the idiocy of such a statement? It is not only that judicial decisions are not named for the judges who write them, but for the parties to the controversy before the court. It is not only that no judge could ever have imposed a decision as comprehensive and complex, ruling on so many details of evidentiary admissibility, fact, and law without interminable flurries of motions and appeals burying the court in white inch by inch, foot by foot. It is not only that Trump is limited not by the SCOTUS decision in this case, which sided with the government, but by a settlement. It is not only that the settlement was the work of dozens if not hundreds of people with vastly more knowledge of the relevant facts and law than even the entire Trump family could ever hope to learn. It is not only that Flores has, in practice, been anything but a disaster for the USA. It is all these things and more.
I find myself astonished by this statement, made to yet another group of dunces in confederacy against the Constitution and its drafters. It is astonishing on so many levels, and yet one that keeps returning to the forefront of my mind is this: Yes, turnover in your administration has been high, but at long last, have you left no speechwriters, sir? Even should you wish to denigrate Flores, could not one amongst your cronies at least inform you that this is the name of no judge?
Was there no one to tell him that when campaigning against the rights of children, it might backfire to neglect even to remember that Flores is the name not of a judge but of a heroic child? As terrifying as that might be to contemplate, there is another fear more whitely blinding: perhaps if we who care about children do not remember Jenny Flores, it might not backfire at all. Perhaps the ultimate judgement of the United States versus Jenny Flores will be that her disappearance does not matter at all.