Immigration

  • May 7, 2015
    BookTalk
    Allegiance
    A Novel
    By: 
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • April 6, 2015
    Guest Post

    by Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law; Professional Lecturer in Law, George Washington University Law School

    The area near the border between Texas and Mexico is a dangerous one, especially if you are a liberal Democrat from the North trying to deal with about 11.3 million individuals who are not lawfully in the United States, when the budget and the personnel to operate existing systems will not enable you to deport more than 400,000 a year. And judging from the February 16 opinion in Texas v. United States by District Judge Andrew Hanen, who sits in the Brownsville Federal Court located there, the courthouse is not a safe place to be either.

    Judge Hanen’s ruling, which runs 123 pages and was followed by a three-page preliminary injunction, has so much in it that it is impossible to do more in an essay like this than to summarize the key points. Meanwhile, the Federal Government has appealed and is seeking a stay in the Fifth Circuit, which will be heard on April 17. But first, let’s start with what Judge Hanen did and then take a look at the appellate posture. 

    The first step is to recognize who in the Executive Branch did what that precipitated the lawsuit. Although the popular notion is that it was a decision of President Obama that was being challenged, the President did not issue an executive order or anything else to bring about these changes: he left those to the Secretary of Homeland Security, Jeb Johnson.  This choice may actually matter here because the flaw that Judge Hanen identified – failure to comply with the Administrative Procedure Act (APA) – applies only to agency officials, which excludes the President. 

    Secretary Johnson, acting with at least the president’s blessing, if not at his direction, created a new program for parents of children lawfully in the United States – Deferred Action for Parents of Americans and Lawful Aliens (DAPA) – and expanded the existing program for children – Deferred Action for Childhood Arrivals (DACA).  Each has two major components.  First, they direct agency officials not to deport otherwise deportable aliens who fall into certain categories whose presence in the U.S. does not present significant dangers to the country, mainly parents of others authorized to be in the U.S. Second, they authorize the estimated 4.3 million individuals who fall in each category to receive federal work authorizations, which aliens need to obtain a legal job, as well as other benefits that flow from being authorized to work. The legal issues for the two parts are different, but before turning to those questions, there is the ever-present and often devilish issue of standing or, in lay language, what says you have a right to sue over this claim?

  • March 16, 2015
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say “no” to unconstitutional laws and executive actions: It is the judicial power to say “no” that gives the judicial power to say “yes” its legitimating force. Government benefits mightily when a judicial opinion upholding official action puts at rest, if not an underlying policy debate, then at least the public’s interest in prolonging a constitutional battle about whether the challenged action is at least lawful.  Such seems to have been the result in 2011when the Supreme Court upheld the Affordable Care Act.  A judicial imprimatur can have this beneficial impact, however, only if the public understands that courts make independent judgments.

    For this reason, despite powerful legal arguments that U.S. District Court Judge Andrew Hanen should not have reached the merits of any issue regarding the Department of Homeland Security’s program of “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), the country may be better off once a court does so. My difficulty with Judge Hanen’s massively overwritten 123-page opinion in Texas v. United States is not that Texas got past threshold procedural barriers to judicial review. It is that, in an ideologically driven opinion, Judge Hanen simply gets the law wrong.

    As a formal matter, Judge Hanen grants Texas the preliminary injunction it seeks because he deems Texas likely to succeed in challenging the DAPA policy on a procedural basis, namely, publication of the policy without an opportunity for public comment under the Administrative Procedure Act. His conclusion on this point is wrong, as I discuss below, but perhaps foreordained by a more glaring error. Although Judge Hanen purports to rule only on procedural grounds, his opinion makes crystal clear that he thinks DAPA exceeds the DHS Secretary’s legal authority. His analysis is framed by an overarching narrative about how a supposedly feckless federal government is victimizing the helpless states by simultaneously hoarding to itself all authority over immigration and then abandoning a constitutional duty to protect the states from the burdens imposed by the presence in the U.S. of millions of undocumented immigrants. (If you want to see what judicial empathy for a plaintiff looks like, reading Judge Hanen’s 47-page analysis of Texas’s standing to sue would make a good start.) 

    Judge Hanen’s framing is doubly unfortunate. First, it ignores the ways in which the DAPA program would boost state economies and accompanying tax revenues. As 14 states and the District of Columbia have argued in an amicus brief supporting DAPA: “When immigrants are able to work legally—even for a limited time—their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base.” Moreover, Judge Hanen’s narrative of states as victims leads him to four outright mischaracterizations of DAPA.

    To see these misconceptions starkly, it is helpful to consider that the measures DHS Secretary Jeh Johnson implemented through two memoranda on November 20, 2014 effectively accomplish three things. First, they establish national immigration enforcement priorities, instructing all immigration agencies within DHS as to the highest priorities for detention and removal, as well as the criteria for a new program of deferred action for parents of U.S. citizens and other legally permanent residents. With or without DAPA, DHS’s immigration components would be free to follow these priorities in their law enforcement activities.

  • March 12, 2015

    by Nanya Springer

    The Citizenship Clause of the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This statement may seem simple enough, but U.S. Senator David Vitter is once again pushing legislation to upend the Constitution’s provision of birthright citizenship.

    According to Vitter, the 14th Amendment is misunderstood and contains a loophole that needs to be closed to prevent an influx of “birth tourists.”  Constitutional law experts say the Amendment is straight forward, and Vitter and his cohorts are trying to destroy a constitutional right.

    This is not a new debate.  The faulty arguments behind Vitter’s legislation were addressed and discredited years ago by scholars including Garrett Epps of the University of Baltimore School of Law and Elizabeth Wydra of the Constitutional Accountability Center, who authored an Issue Brief on the subject.  Take a look at the resources below for a thorough explanation of why new attempts to take away birthright citizenship are still wrong.

    Born in the USA?: The Historical and Constitutional Underpinnings of Birthright Citizenship (video)

    Born Under the Constitution: Why Recent Attacks on Birthright Citizenship Are Unfounded, Elizabeth Wydra (Issue Brief)

    Epps on “Da Vinci Code Originalism” and the Citizenship Clause (ACSblog)

    Here We Go Again: At Republican Debate, Pawlenty Denies Constitutional Text and History Establishing Birthright Citizenship, Elizabeth Wydra (ACSblog)

  • January 9, 2015
    Guest Post

    by Sejal Zota, Staff Attorney, National Immigration Project of the National Lawyers Guild

    Moones Mellouli is a native of Tunisia, but a lawful permanent resident of the United States, engaged to marry a U.S. citizen. The federal government is trying to deport Mellouli for his Kansas conviction for possessing a sock – yes a sock! – deemed drug paraphernalia when used to conceal or store drugs. ACS thrives on its law-student participation, so let’s build a hypothetical with socks to illustrate this important Supreme Court argument. When a DOJ attorney steps to the podium at the Court on Jan. 14 to defend this deportation order, imagine for a moment his credibility if he walked up wearing two different colored socks; say a pink argyle and a green striped one.

    But these socks would likely be hidden by the podium -- so imagine, instead, that he walked in on his hands to parade his mismatched stockings before the justices. Far-fetched perhaps, but the eyebrows this would raise should match the justices’ reaction to the government’s mismatched administrative interpretations of the single statute at issue here, Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act.   

    First things first, this statute itself in no way calls for Mellouli’s deportation. It specifically calls for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” But the record of Mellouli’s conviction does not disclose anything about the drug he had socked away.  Kansas law bans plenty of substances -- a list far broader than those defined in section 802 of title 21. For example, salvia is on the Kansas list, a type of mint plant, which Miley Cyrus (another adventurous dresser) recently made news smoking.

    The Board of Immigration Appeals (BIA) is the administrative agency responsible for interpretation of this and other immigration statutes. Courts typically give administrative agencies a fair amount of leeway to interpret statutes. This principle is known as Chevron deference.  But this deference is not free for the taking. Federal courts don’t give it when the agency interpretation bears little relation to the statute, and they throw deference completely to the side when the agency starts offering inconsistent interpretations of a single statute. The government is asking for Chevron deference in this case, but suffers from both of these problems.

    The plain language of the federal statute requires the state paraphernalia conviction be directly and necessarily tied to a controlled substance under federal law. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs are not on the federal list of controlled substances. There is no necessary federal tie Mellouli’s Kansas crime, and no basis for interpreting the statute otherwise.