President Trump’s new executive order on immigration addresses some of the legal problems found by courts in the Jan. 27 original order, but is still vulnerable on some of the same legal grounds.
As a constitutional law professor who has recently written on this topic, I’d contend that Trump’s lawyers are not out of the woods yet.
Some important changes
The new executive order still has the original’s 120-day ban on the entry of refugees from all countries. Jettisoned is the indefinite ban on Syrian refugees.
The new order keeps the 90-day ban on entry by persons from six majority Muslim countries – Iran, Syria, Somalia, Sudan, Libya and Yemen. But the new order removes Iraq from the list. The change came because of Iraq’s role in assisting the U.S. in the fight against the Islamic State and its enhanced security measures, according to Secretary of State Rex Tillerson.
The revised order also removes the original’s preference for refugees who are members of “minority” religions in their country of origin. Stating this preference had opened the Trump administration up to the argument that the original order aided Christians and other non-Muslims in violation of the separation of church and state.
But the change may be too little, too late. The federal court that struck down the first executive order on church-state grounds also relied on statements by Trump and Rudy Giuliani that the purpose of the order was to effectuate a “Muslim ban.” The new executive order doesn’t undo the effect of those statements. You can’t unring that bell.
Due process clause less of an issue
Additionally, the current executive order clarifies that it does not apply to green card holders or those who hold lawful visas. This detail will help Trump defend against arguments that the order violates the Constitution’s due process clause, which was the basis for the federal appellate court ruling that the order was unconstitutional.
The due process clause provides that the government cannot take away someone’s liberty without notice and a hearing before an unbiased decision-maker. It applies even to noncitizens if they are present in the U.S., but not to noncitizens abroad. Exempting noncitizens with green cards or visas means there are far fewer people affected by the executive order who have the right to complain of a due process problem.
But other legal issues apply equally to the original and revised orders. By imposing a blanket ban on anyone coming from one of the remaining six majority Muslim countries, this week’s executive order still arguably runs afoul of a 1965 statute that bans discrimination on the basis of “national origin” regarding visas. To be sure, by exempting current visa holders from the executive order’s reach, the universe of potential legal challengers on this ground shrinks. But to the extent the executive order burdens those seeking new visas, there may still be a viable legal challenge.
Ultimately, the only way to know for sure the legal effect of this new executive order is to wait for a court ruling. Given that the American Civil Liberties Union has already pledged to challenge the new executive order in its ongoing litigation against the immigrant ban, we may not have to wait long.
By Kelly Lytle Hernandez
University of California, Los Angeles
February 26, 2017
A rowdy segment of the American electorate is hell-bent on banning a specific group of immigrants from entering the United States. Thousands upon thousands of other people – citizens and immigrants, alike – oppose them, choosing to go to court rather than fulfill the electorate’s narrow vision of what America should look like: white, middle-class and Christian.
Soon a series of U.S. Supreme Court rulings could grant unrestrained power to Congress and the president over immigration control. More than 50 million people could be deported. Countless others might be barred from entering. Most of them would be poor, nonwhite and non-Christian.
This may sound like wild speculation about what is to come in President Donald Trump’s America. It is not. It is the history of U.S. immigration control, which is the focus of my work in the books “Migra! A History of the U.S. Border Patrol” and “City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles.”
Historically speaking, immigration control is one of the least constitutional and most racist realms of governance in U.S. law and life.
Made in the American West
The modern system of U.S. immigration control began in the 19th-century American West. Between the 1840s and 1880s, the United States government warred with indigenous peoples and Mexico to lay claim to the region. Droves of Anglo-American families soon followed, believing it was their Manifest Destiny to dominate land, law and life in the region.
But indigenous peoples never disappeared (see Standing Rock) and nonwhite migrants arrived (see the state of California). Chinese immigrants, in particular, arrived in large numbers during the 19th century. A travel writer who was popular at the time, Bayard Taylor, expressed the sentiment settlers felt toward Chinese immigrants in one of his books:
“The Chinese are, morally, the most debased people on the face of the earth… their touch is pollution… They should not be allowed to settle on our soil.”
When discriminatory laws and settler violence failed to expel them from the region, the settlers pounded Congress to develop a system of federal immigration control.
In response to their demands, Congress passed the 1882 Chinese Exclusion Act, which prohibited Chinese laborers from entering the country for 10 years. The law focused on Chinese laborers, the single largest sector of the Chinese immigrant community. In 1884, Congress required all Chinese laborers admitted before the Exclusion Act was passed to secure a certificate of reentry if they wanted to leave and return. But, in 1888, Congress banned even those with certificates from reentering.
Illustration, ‘How John may dodge the exclusion act’ shows Uncle Sam’s boot kicking a Chinese immigrant off a dock. Library of Congress
Then, when the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act, which again banned all Chinese laborers and required all Chinese immigrants to verify their lawful presence by registering with the federal government. The federal authorities were empowered by the law to find, imprison and deport all Chinese immigrants who failed to register by May 1893.
Together, these laws banned a nationally targeted population from entering the United States and invented the first system of mass deportation. Nothing quite like this had ever before been tried in the United States.
Chinese immigrants rebelled against the new laws. In 1888, a laborer named Chae Chan Ping was denied the right of return despite having a reentry certificate and was subsequently confined on a steamship. The Chinese immigrant community hired lawyers to fight his case. The lawyers argued the case up to the U.S. Supreme Court but lost when the court ruled that “the power of exclusion of foreigners [is an] incident of sovereignty belonging to the government of the United States” and “cannot be granted away or restrained on behalf of anyone.”
Simply put, Chae Chan Ping v. U.S. established that Congress and the president hold “absolute” and “unqualified” authority over immigrant entry and exclusion at U.S. borders.
Chinese exclusion cases
Despite this loss, Chinese immigrants refused to comply with the 1892 Geary Act, submitting themselves for arrest and risking both imprisonment and deportation rather than registering with the federal government.
They also hired some of the nation’s best constitutional lawyers. Together, they swarmed the courts with challenges to the Geary Act. In May 1893, the U.S. Supreme Court agreed to hear its first deportation case, Fong Yue Ting v. U.S. and quickly ruled that deportation is also a realm of “absolute” authority held by Congress and the president. The court wrote:
“The provisions of the Constitution, securing the right of trial by jury and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.”
In other words, the U.S. Constitution did not apply to deportation. Immigration authorities could develop practices to identify, round up and deport noncitizens without constitutional review.
It was a stunning ruling even by 19th-century standards. So stunning that three of the justices issued scathing dissents, arguing that the U.S. Constitution applies to every law enforced within the United States. As Justice Brewer put it:
“The Constitution has potency everywhere within the limits of our territory, and the powers which the national government may exercise within such limits are those, and only those, given to it by that instrument.”
But such dissent held no sway. Six years later, the U.S. Supreme Court tripled down on immigration control as exempt from judicial review. In that 1896 ruling, Wong Wing v. U.S., which was issued on the same day as the court upheld racial segregation laws in its infamous Plessy v. Ferguson decision, the court held that the Constitution does not apply to the conditions of immigrant detention.
By 1896, the U.S. Supreme Court had granted Congress and the president nearly unrestrained power over excluding, deporting and detaining noncitizens, both at U.S. borders and within the national territory. To date, they have used that authority to deport and forcibly remove more than 50 million people and ban countless others from entering the country. Most of them are nonwhite, many of them poor and a disproportionate share non-Christian.
Making America great again
Over time, Congress and the courts placed several limits on what is allowable in immigration control. For example, the 1965 Immigration Reform Act prohibits discrimination on the basis of “race, gender, nationality, place of birth, or place of residence.” And several court rulings have added a measure of constitutional protections to deportation proceedings and detention conditions.
But, in recent weeks, Trump and his advisers have tapped into the foundational architecture of U.S. immigration control to argue that the president’s executive orders on immigration control are “unreviewable” by the courts. As Trump’s senior advisor Stephen Miller put it: The president’s executive powers over immigration control “will not be questioned.”
On Feb. 9, the U.S. Court of Appeals for the Ninth Circuit turned down the administration’s “unreviewable” argument regarding the so-called Muslim ban. But Trump’s immigration enforcement order still stands. This includes a provision that subjects even those unauthorized immigrants who are simply suspected of crime to immediate removal. It also denies many of the immigrants who unlawfully cross our borders the due process protections recently added to deportation proceedings.
If implemented as promised – that is, with a focus on “bad hombres” and the U.S.-Mexico border – Trump’s immigration plan will exacerbate the already disproportionate impact of U.S. immigration control on Latino immigrants, namely Mexicans and Central Americans. U.S. immigration may no longer target Chinese immigrants, but it remains one of the most highly racialized police projects within the United States.
Trump’s executive orders are pulling U.S. immigration control back to its roots, absolute and racial. The U.S. Court of Appeals for the Ninth Circuit pushed back against this interpretation, affirming the reviewability of the seven-country ban. But the decisions made during the Chinese exclusion era are likely to protect many of the president’s other orders from judicial review. That is, unless we overturn the settler mentality of U.S. immigration control.
To learn more about the history of U.S. immigration control, see #immigrationsyllabus.
February 27, 2017
Source: U.S. Immigration Service
The common image of an illegal immigrant sneaking into the U.S. involves a Latin American huddling for cover in the brush of an expansive desert. It’s hot, dry, and desolate. Perhaps they are attempting to swim across the Rio Grande as it meanders through the dusty climes of the southern U.S. or jump a fence in the middle of the night. There is a different, much less publicized form of illegal immigrant—the kind coming from Canada. Many of these individuals are not Latin American—U.S. Customs and Border Protection (CBP) have apprehended border jumpers from Albania, The Czech Republic, Israel, and India—and the often cross the many waterways of Michigan, Wisconsin, Minnesota, and New York by boat, jet ski, or by swimming.
Last year, in an attempt to slow the flow of illegal immigration from Canada, CBP spent $20 million on a surveillance system that monitors 34 miles of the St. Clair River bordering Michigan and Canada—a popular destination for illegal immigrants crossing from Canada. So far, the new system has caught four human smuggling attempts. However, it is sometimes citizens who end up nabbing illegal immigrants by accident. A fishing group on the St. Clair River noticed a man in a Speedo with a backpack swimming in the river recently. CBP was alerted and the man, who hailed from the Czech Republic, was apprehended. The flow of illegal immigration across the U.S.-Canadian border is much slower than that of the U.S.-Mexico border, but it is enough to warrant enforcement. CBP agent Chris Grogan said, “People will continue to try to get in. We can’t stop that. But we are doing whatever we can do to stop them. They realize that we’re there, and we’re going to get them.”
Michigan is a particularly popular crossing point. Many lakes and rivers compose the border between the state and Canada and illegal immigrants use the rugged vastness of the terrain to their advantage. Kyle Niemi of the U.S. Coast Guard division charged with patrolling Michigan’s waterways has said, “It’s a very complex system. … You have lakes that are akin to seas—they’re humongous. And then there are rivers that in the winter months you can walk across. It’s a fragile system.” At times, these water crossings have been deadly. A young Albanian boy was attempting to cross the Detroit River with his mother in 2005. His jet ski turned over, drowning him. U.S. Immigration and Customs Enforcement (ICE) agent Brian Moskowitz has said, “People need to be careful. Not only do they face us, but they face some very real personal dangers.”
Many critics claim that border security will do nothing to curb illegal immigration until the incentive to come to the U.S. is removed. That incentive, for most, is the possibility of employment. The sluggish U.S. economy has been responsible for a downturn in illegal immigration but many U.S. lawmakers are pushing for the mandatory use of E-Verify, a federal government database that allows employers to check the residency status and legality of someone they wish to hire. If employers could not hire illegal immigrants, many argue, illegal immigrants would have little reason to risk life and limb to come to the U.S.
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