Immigration

  • December 10, 2015
    Guest Post

    by Ira C. Lupu, the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle, the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (Eerdmans Publishing Co., 2014).

    Constitutional lawyers and immigration experts have offered conflicting opinions on the constitutionality of Donald Trump’s proposal to prohibit Muslims from entering the United States. Some constitutional scholars have argued that the proposal violates the Constitution. Immigration experts, including Professor Gulasekaram and others, have expressed doubt that an American court would strike down such a plan, in light of the broad authority over immigration policy that the Supreme Court has recognized in the Congress and the President.

    Prior decisions by the Supreme Court have indeed confirmed that immigration policy may rest on considerations of national origin and ancestry. But no decision by the courts has confronted an exclusion based on religion, and any such policy is constitutionally doomed.

    The reason is probably not religious favoritism, which would be fatal to any domestic policy that preferred members of one faith to others. Instead, Trump’s policy certainly offends the Constitution because it would require the government to decide who belongs to the Muslim faith.

    Imagine the process for obtaining a visa to enter the United States, as a tourist, student, or any other relevant status. The applicant completes a form. In addition to the current questions, the Trumpian form might ask “Are you a Muslim?” or it might have a broader question about faith, with boxes to check like “Muslim,” “Christian,” “Jewish,” or “Atheist.” Anyone who answers “Muslim” will be denied a visa. So far, the inquiry alone violates no constitutional norms, although the policy of denying entry to self-admitted Muslims is constitutionally questionable.

    But what happens with an applicant who comes from a predominantly Muslim country, or has a name that suggests a Muslim heritage, yet checks a box other than “Muslim?” Will the system depend entirely on the applicant’s declaration? That system would collapse.  Any Muslim who wants to enter the U.S. and is willing to deceive will do so. Now what?  For the system to work, every applicant would have to be interrogated. And what would be the relevant questions? “Do you believe that there is only one God, and his name is Allah”?  “Do you believe that the Quran is a sacred text”? The government cannot exclude someone as a Muslim unless there are criteria for determining which beliefs characterize one as a follower of Islam.

    At this point in the process, the First Amendment’s Establishment Clause kicks in with a vengeance. The Clause is in the Bill of Rights, but it does not function as an individual “right.” Instead, it imposes a limit on the character and jurisdiction of the government.  The people of the United States belong to many faiths or to none, but the government itself has no religious identity. It is secular. Congress has no power to contravene this principle, whether or not the matter involves immigration.

  • December 9, 2015
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University School of Law. Professor Gulasekaram teaches constitutional law and immigration law, and is co-author of The New Immigration Federalism (Cambridge Press, 2015).

    Every semester in immigration law class, we begin by reading the Supreme Court cases from the late 1800’s that established the scope of federal immigration power. Those cases – dubbed the Chinese Exclusion Cases – upheld the constitutionality of federal laws that banned immigration of Chinese and made resident Chinese deportable unless they could show a certificate of residence or provide evidence of their residency, with the testimony of white witnesses. In those cases, the Court chose to defer to the judgment of the political branches and established the plenary federal power to exclude non-citizens.  Such power shielded Congress’ outright racial and national-origin exclusions, and discriminatory deportation standards from judicial review. It was an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s. 

    After reading those foundational cases, I usually pose a hypothetical to my class asking whether a statute passed by present-day Congress that barred immigration from predominantly Muslim countries and which called for the prioritized deportation of immigrants from predominantly Muslim countries would be constitutional. In essence, the hypothetical is intended to query how we should understand the continued vitality of the Chinese Exclusion Cases and the principle of plenary federal power over immigration they enshrined. Almost every time we engage in the exercise, at least some students remark that such a statute could never be enacted today, based on how we’ve evolved as a pluralistic society.

    Incredibly, as the past few weeks have shown, such blatant discrimination may not be just a theoretical exploration after all. Rather than rely on a fictional creation, I could have just quoted from the various proposals from state governors, presidential candidates, and members of Congress, first to ban all Syrian refugees, then to ban Syrian refugees who are Muslim, and more recently, by Donald Trump, to exclude all Muslims from entering the country.

    There is no doubt that such statements from prominent officials and presidential candidates are corrosive. They affect the way we view those in our society who share that religious or national background, and provide fodder for those who mistakenly believe that the fight against terrorism and extremism is a war against all 1.6 billion Muslims (approximately 1/4th of the world’s population), many of whom are fleeing the same violence these proposals misguidedly intend to address.

    But beyond the wisdom and desirability of these proposals, would they be constitutional? As I have written elsewhere, and as others contributors have argued on this blog, state-level opposition to Syrian refugees is not legally viable.

    State governors cannot dictate our refugee policy, and are barred from discriminating against certain noncitizens on the basis of national origin or religion.

    But what about proposals at the federal level that ban the admission of any Muslims or those applying from predominantly Muslim countries? For those unfamiliar with immigration law, these would seem to be easily resolved as well. One would think that straightforward application of constitutional provisions like the equal protection guarantee, the due process clause, and the First Amendment would quickly diffuse any such attempts. But, the reality is that the Court has never used these constitutional principles to limit federal admission and exclusion policy.  As it turns out, the Chinese Exclusion Cases have never been overruled and, ostensibly, remain good law.

  • November 20, 2015
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    One year ago today, President Obama announced his administration’s executive actions on immigration. Known as the DAPA Memo, the announcement described executive actions that would have exercised prosecutorial discretion not to deport millions. Since then, a district court in Texas has stalled its implementation with an injunction, claiming that the executive branch overstepped its authority by offering deferred action to millions of undocumented persons. Most recently in Texas v. United States, the U.S. Court of Appeals for the Fifth Circuit agreed, noting that the executive actions were outside of any authority delegated by Congress. The Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction, characterizing the administration’s actions as proposing to confer deferred action and then employment authorization categorically to millions in violation of the Administrative Procedure Act. The court got it backward in its analysis.

    The Court of Appeals premised its analysis on the notion that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization. Here is where the Court of Appeals got it wrong. As the government argued and the dissent in the appellate decision concluded, it is the agency’s authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

    The employer sanctions provisions of the Immigration Reform and Control Act (IRCA) –which established the parameters of employment authorization – expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. When Congress first set up employer sanctions and a worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

    As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. (emphasis added).

  • November 11, 2015
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Last November 20, 2014, President Obama announced a series of executive actions on immigration, which contained two specific programs to focus deportation resources. The first was for young people and extended “Deferred Action for Childhood Arrivals” 2 to 3 years, among other changes. The second created a new guideline called “Deferred Action for Parents of Americans and Legal Residents” for qualifying parents who have resided in the United States for at least five years. Deferred action is a form of prosecutorial discretion in immigration law which in turn, is associated with the government’s decision to refrain from bringing enforcement actions against individuals for humanitarian and resource reasons. This type of discretion has existed in immigration law for decades and is not only grounded in the immigration statute and other laws but is also inevitable in light of the limited resources the Department of Homeland Security holds to enforce these laws. The recent deferred action programs have been on hold because of litigation brought by the state of Texas and 25 states challenging the legal authority of the president’s actions.

    On November 9, 2015, a majority panel at the Fifth Circuit Court of Appeals concluded ruled against the Administration, and went even further than the lower district court by concluding that even if the Deferred Action for Parents of Americans and Legal Residents (DAPA) program followed the procedural requirements, the DAPA memorandum is nonetheless contrary to the Immigration and Nationality Act and substantively violates the Administrative Procedure Act. The following day, the Department of Justice issued a statement confirming that it would appeal the decision to the U.S. Supreme Court. The Fifth Circuit’s decision was predictable in light of the panel composition (two conservative judges who previously ruled against the Administration when it filed an appeal to an emergency stay with the Fifth Circuit on the same case). Of note, Judge Carolyn King issued a sharp dissent that ran as many pages as the majority opinion and agreed with the legal foundation advanced by the Department of Justice, more than 130 law professors, and scores local government officials (including the Mayor of my own hometown State College).  Possibly, the case will be heard by the Supreme Court in summer 2016, and pave the way for the Department of Homeland Security to implement the deferred action programs now on hold before the presidential election.

  • October 22, 2015
    BookTalk
    The New Immigration Federalism
    By: 
    Pratheepan Gulasekaram and S. Karthick Ramakrishnan

    by Pratheepan Gulasekaram and S. Karthick Ramakrishnan. Gulasekaram is an Associate Professor of Law at Santa Clara Law, and Ramakrishnan is a Professor of Public Policy and Political Science and Association Dean of the School of Public Policy at the University of California, Riverside.

    The years after 9/11 have witnessed a period of great ferment and transformation with respect to immigration and federalism. This era, characterized by an extended federal legislative gridlock on immigration, has been one of unprecedented levels of state and local policymaking on the subject. The past several years have witnessed a flurry of restrictionist policies, like Arizona’s SB 1070 and its copycats, employer verification statutes, and local agreements with the federal government to help enforce immigration laws. On the integrationist side, states and localities have implemented policies to resist their complicity in federal immigration enforcement, provide education benefits, and allow access to a variety of social services.

    What are the causes of this development, in terms of background factors and more proximate causes? And, what are the consequences of these new developments in immigration federalism, particularly with respect to our understanding of the role of states and localities in our constitutional order? Using empirical data and a multi-disciplinary approach, our book answers these central questions and provides several key insights for the future development of state and local policy and federal immigration reform.

    We first situate the current flurry of subfederal legislation in the larger historical context of immigration federalism in the United States, showing how Congress and the Supreme Court have played key roles in particular historical moments, to either permit or limit state involvement in regulating immigration. Indeed, we make the case that this contemporary period represents an emerging phase in the still-evolving “third era” of immigration federalism that began in 1965, an era that is distinct from the first century of immigration law that was state-centric, and the second century of immigration law where the federal government became dominant. In the past fifty years, Congress waded explicitly into defining what states can do with respect to regulating the welfare and livelihood of immigrants, and states attempted significant controls over the undocumented population. We end our historical overview with the period immediately preceding September 11, 2001, discussing in detail California’s Proposition 187 in 1994, the predecessor to the several state and local restrictive efforts that dominated headlines over the past ten years.

    Having provided this context, we then explain the various types of laws that states and localities have passed during this new period of immigration federalism. In Chapter 3, we provide a description and classification of key types of restrictionist laws at the state and local level that were dominant from 2004 through 2012, such as enforcement laws, employer sanctions provisions, and rental ordinances aimed at undocumented immigrants. We then examine the causes for this spike in restrictionist legislation, and ask why it was occurring in some places but not in others. Using original empirical analysis, we reject the conventional narrative about these restrictionist laws, which popularly held that a combination of demographic pressures from new patterns of unauthorized migration, combined with federal inaction, created irresistible pressure for states and localities to act. Our empirical analysis not only refutes this generally-accepted (but mistaken) explanation, but in doing so reveals the most salient factor explaining the proliferation of restrictionist laws across selected jurisdictions:  political partisanship.  Put simply, we show that demography is not destiny, but politics may be.