The Undergraduate Law Review at UC San Diego

This paper discusses the “zero-tolerance policy” responsible for the mass separation of immigrant families, including those with children who hold birthright citizenship. Immigration legislation, including the zero-tolerance policy, was passed under the first Trump Administration to curtail illegal immigration. Despite attempts to restrict unlawful entry, the policy violates the fundamental rights of citizens and undocumented families. This paper analyzes the powers enumerated to the government over immigration as provided by the Constitution. It also examines the authority the executive branch has over immigration legislation through the Take Care and Vesting clauses, particularly after the enactment of the 2002 Homeland Security Act. Through an examination of the institutional framework governing the child removal process in states along the Southern border, I will assert that the separation of families by immigration authorities surpassed the scope of their legal jurisdiction. Children, regardless of immigration status, are entitled to proper custody protocol and the option to stay with family. Thus, I will argue how the due process and equal protection rights guaranteed to families under the Fifth and Fourteenth Amendments were violated by the enactment of the zero-tolerance policy.