Members of Congress who die in office customarily have a year’s salary, currently $174,000, as a payout to their survivors.
Families of U.S. service members who die on active duty get a $100,000 death gratuity.
Japanese Americans, forced out of their homes and into internment camps for more than two years during World War II, collected $20,000 payments four decades later. That’s worth about $46,000 in today’s dollars.
Lawmakers and legal experts are looking at those kinds of payments as the Biden administration considers cutting $450,000 checks — nearly 10 times the inflation-adjusted rate paid to the internees — to compensate illegal immigrants who say they suffered emotional trauma from family separations as a result of President Trump’s zero-tolerance border policy.
One legal expert characterized $450,000 checks as “quite generous” compared with other payouts that courts have authorized, but figuring out the proper comparison is fraught with complications.
Sen. James Lankford, Oklahoma Republican, said during a Senate committee meeting this month that Americans are outraged by the thought that illegal immigrants would get more than four times the amount that goes to families of troops killed on duty.
The families of soldiers and sailors also get other benefits, such as access to the military health care system for life. In the weird world of settlements and payments, death usually has a lower compensation rate than a severe injury.
Jay Tidmarsh, a law professor at the University of Notre Dame, suggested the World War II internments as a comparable framework. Tens of thousands of American citizens of Japanese descent, as well as some Japanese immigrants, were ordered out of their homes in the American West and forced to live in what amounted to concentration camps from 1942 through the end of 1944.
The Supreme Court ruled the exclusion policy as constitutional at the time, but the internments have since come to be seen as a marquee example of unchecked government power and racial targeting.
Mr. Tidmarsh said a half-million-dollar payment “sounds too high” for the average migrant’s experience but might be right for extreme cases.
“There’s no right number. So we’re talking about picking a number that seems appropriate,” he said. “If you were to say $450,000’s appropriate and I were to say $200,000 is appropriate, neither of us is wrong.”
He added, “We’re talking about emotional damages, and those are the trickiest and hardest things to put an exact figure on.”
Another point of comparison is wrongful imprisonment. That often involves family separation and severe deprivation of rights.
Federal law sets a $50,000-per-year maximum payment in those cases. The amount is doubled for time on death row. Jurisdictions have varying policies, from California’s $140-a-day compensation to the District of Columbia’s $200,000-per-year payout.
Charles Silver, a law professor at the University of Texas at Austin, said he is not sure about the right legal comparison.
“But I can say that $450,000 per person is quite generous by comparison to many torts,” he said in an email.
He said even attorneys downplay pain and suffering and emotional injury if plaintiffs don’t have concurrent economic losses or physical injuries.
The payments are discretionary. Mr. Tidmarsh said federal law would likely protect the government from civil lawsuits.
“It’s a policy decision,” he said. “This administration disagrees with the prior administration’s policy. One of the ways to signal that is to compensate the people who were victims of that policy.”
The American Civil Liberties Union, which is leading negotiations on behalf of the migrants, didn’t respond to a request for comment.
Family separations came out of Mr. Trump’s get-tough approach to illegal border crossings. Families were exploiting a loophole that allowed many adults who brought children across the border to be caught and released into American communities.
Under the zero-tolerance policy, the Homeland Security and Justice departments prosecuted the parents for illegal entry, a misdemeanor. That meant jail time. Because federal jails have no family facilities, the children were put into government-run shelters.
The government lacked the capacity to reunite the families after the parents were released from jail. In many cases, parents were deported without their children.
The government is still trying to reunite some families. The Biden administration has announced plans to readmit deported parents to give them another chance to claim asylum or convince immigration agencies that they should stay.
The payment negotiations were revealed by The Wall Street Journal, which said $450,000 could be a typical payout but the exact rate would vary depending on circumstances.
When President Biden was first asked about it, he called the report “garbage.”
Later, presumably after being told the negotiations were real, he said the payments were justified but he didn’t want to pay $450,000.
“If, in fact, because of the outrageous behavior of the last administration, you were coming across the border, whether it was legal or illegal, and you lost your child — you lost your child, it’s gone — you deserve some kind of compensation no matter what the circumstance,” he said.
In most circumstances, the children were reconnected or parents who were deported chose to leave them in the U.S. for a chance at a better life.
An inspector general’s analysis last year said only about 20% of parents wanted children to be sent back to their home countries. In a few cases, deported parents wanted to take their children with them but were refused. Homeland Security didn’t clearly establish the parents’ wishes in several hundred cases.
The idea of paying for family separations plays poorly with most Americans.
A Trafalgar Group poll conducted for the conservative Convention of States Action found two-thirds opposed to the idea. Even among Democrats, those opposed to payouts outnumbered those in support. Republican voters found the plan exceedingly tough to swallow, with 85% “strongly” disapproving.
Making payments as an apology for a previous administration’s actions could set a precedent.
It’s easy to imagine a Republican president eager to pay taxpayers who sued because they felt targeted by the IRS.
Republicans on Capitol Hill are trying to block the Biden payments.
Mr. Lankford tried to attach an amendment to a bill in the Homeland Security and Governmental Affairs Committee last week, but Democrats defeated his effort. They said his proposal would shut down the commission Mr. Biden formed to reunite families.
“No child should be forced to experience the trauma of needless separation from their parents,” said Sen. Gary C. Peters, the Michigan Democrat who led opposition to Mr. Lankford’s proposal.
The Biden task force has reunited 50 families so far, Mr. Peters said.
Republican senators said they will make another attempt to block the payments as part of the debate on the annual defense policy bill.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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