The ACLU sued the United States for money on behalf of illegal immigrants for being separated from their children when they were caught and detained at the border. The Wall Street Journal reported a few weeks ago that the Department of Justice was considering settling the case for about $450,000 per individual – a settlement amounting to over a million dollars in the case of a family of three and over two million for a family of five.
The basis for the ACLU’s lawsuit on behalf of the immigrants is not clear. Most legal experts agree that whatever the morality of putting children into shelters, it is lawful. That’s what happens when parents commit a crime and are incarcerated. The lawsuit appears designed to establish new judge-made law to the effect that when the crime is illegal immigration, the children must be incarcerated with the parents (who may or may not actually be their parents) in an adult prison.
That of course would be untenable. Which is why immigration activists are pushing it. Being a generous people, Americans would not allow the incarceration of children in adult prisons, and so the effect would be to prevent the incarceration of the parents too.
Joe Biden characteristically professed no knowledge of this. In answer to a reporter’s question, he snapped that the WSJ’s report was “garbage.” The ACLU immediately issued a statement saying Biden was wrong. The administration a few days later admitted as much, but stated that the $450,000 figure was incorrect.
The net effect is this. In a case seeking compensation from the U.S. government with taxpayer money on a novel and unproven legal theory, the lawyers responsible for representing the American people have already thrown in the towel.
It’s not just the DOJ lawyers who’ve thrown in the towel, but also their boss. Against all legal precedent and against the interests of the people he serves, Biden has stated that the immigrants “deserve” compensation.
The polls suggest that Biden is once again out of touch with the sentiment of the American people. Not to mention out of touch with his own DOJ.
But this goes beyond a political matter. Biden’s words and the DOJ’s actions are arguably unconstitutional, illegal and in violation of the rules of ethics governing attorneys.
The Constitution limits lawsuits in the federal judiciary to “cases and controversies.” This means that the courts are empowered only to apply the law to decide actual disputes. Courts do not serve to rubberstamp settlement agreements in make-believe cases brought by allied parties for the purpose of establishing new law. Stated another way, courts do not serve as mini-legislatures to enact laws at the behest of parties who pretend to disagree but are actually in cahoots.
Cahoots describes exactly the arrangement between the ACLU and Biden’s DOJ. The two sides pretend to disagree but actually are colluding to establish new law to dispense taxpayer money to illegal immigrants that they’ve decided deserve it.
This lawsuit is therefore not a case and controversy, as the Constitution requires. Instead, both sides are actually on the same side – the side of the illegal immigrants. The lawsuit is thus unconstitutional.
It’s also unethical. Under the rules of ethics, attorneys are required to advocate the interests of their client. Attorneys who have interests conflicting with their clients’ interests have what is both technically and commonly known as a conflict of interest. Attorneys with a conflict of interest are generally required to withdraw from representing the client, so that the client is assured that his interests alone are what the attorney advocates.
This sham litigation by Biden’s DOJ in collusion with the ACLU is in violation of this ethics rule. The DOJ attorneys are not zealously representing the interests of their client, namely the U.S. government and the American people. They’re instead advancing the personal political and philosophical sentiments of themselves and the president – to the detriment of their clients.
In view of their conflict of interest in this case, the DOJ attorneys should be replaced with private attorneys to represent the government and the American people.
If that doesn’t happen, an ethics complaint should be filed against the DOJ attorneys with the applicable bar association (anyone can file such a complaint) and a motion should be filed with the court by an intervening party (anyone can move to intervene) to disqualify them.
Glenn K. Beaton practiced law in the Federal Courts, including the Supreme Court.