Recognizing the Right to Family Unity in Immigration Law

Abstract

The Trump Administration’s travel ban and separation of families at the U.S.- Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court’s line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three categories of immigration cases in which litigants assert this right. Acknowledging that a substantive resolution of the problem of family separation in immigration will require legislative and executive intervention, this Note argues instead that courts should adopt two recommendations that would, as a matter of judicial process, more fully recognize the right. These measures would validate the dignitary interests of immigrant families and signal to the legislative and executive branches the constitutional implications of their longstanding inaction.