There is broad agreement among Constitutional experts that federal law grants the president vast discretion to shape and set immigration policy. Those powers, however, are not limitless.
Central to all immigration law is a homeland security argument. The law contemplates that protecting the border may require quick and decisive action that is best administrated by the executive branch, specifically the president. From the federal statute:
"Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
What the law does not appear to grant the president is the authority to subject individuals already in custody to extreme and extrajudicial punitive measures for the purpose of creating a deterrent to an entire class of potential asylum-seekers.
In addition, a court that is hearing challenges to the current state of affairs could consider the lack of transparency by the government. The public and the press on its behalf have a legitimate interest in knowing what the government is doing, specifically in this regard -- who is being detained, where those individuals are being detained, and under what conditions. This would be necessary in accounting for the whereabouts of the children spirited away from their parents.
The practice of forcefully removing children from parents while in custody could easily be construed as torture or a human rights violation. This is serious stuff and not essential to "suspending entry" into the country. An American court if it found the separation of children from parents -- even as non-citizens -- inconsistent with U.S. law could order these families reunified.
The administration's statements and the president's own statements clearly articulate political motivations for separating families at the border. To subject these detainees to patently abusive and otherwise unnecessary treatment to achieve political objectives is a matter a judge might well consider.
It should not be assumed that administration's position here is legally unassailable.
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