• February 17, 2017

    by Kaiya Lyons

    The Associated Press reported today that the Secretary of Homeland Security has drafted a memorandum that would mobilize thousands of National Guard troops in 11 states "to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States." Although White House Press Secretary Sean Spicer has denied the existence of any efforts to use the National Guard to deport undocumented immigrants, the plans outlined in the memorandum give rise to serious concerns about the degree of executive control over the National Guard. To what extent can the White House use the power of the National Guard to enforce federal immigration laws?

    Constitutionally, the National Guard exists under continuing state control, but may be used by the federal government to “execute the laws of the Union, suppress insurrections and repel invasions.” Therefore, there are three legally distinct ways the National Guard may be employed. First, the governor of a state may authorize the deployment of troops under state law. Second, a state governor and the president may agree to deploy National Guard troops within that state for a primarily federal purpose under Title 32 of the U.S. Code. Finally, the president may unilaterally mobilize the National Guard for a federal purpose authorized by federal law under Title 10 of the U.S. Code and pursuant to the restriction of military enforcement of domestic policies within the United States under the Posse Comitatus Act.

    Indeed, deploying National Guard troops in consort with state governments to assist in border security operations is not unprecedented. In recent history, both Presidents Bush and Obama have positioned National Guard troops on the United States-Mexico to provide administrative, observational, and logistical support to Border Patrol agents. For instance, in 2006, former President George W. Bush initiated “Operation Jump Start,” which mobilized 6,000 National Guard troops in California, Arizona, New Mexico and Texas to help install border barriers, provide training and assist with border surveillance. In 2010, former President Barack Obama announced the deployment of 1,200 National Guard troops on a similar assignment to support the organizational functions of Border Patrol.

  • February 15, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

    There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

    The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

  • February 13, 2017
    Guest Post
    *This piece originally appeared in the Idaho Statesman.
    by Katherine Macfarlane, Associate Professor of Law, University of Idaho College of Law

    Last month Idaho Rep. Greg Chaney (R-Caldwell) introduced a bill proposing to penalize sanctuary cities that shield immigrants from federal immigration law. But there are no sanctuary cities in Idaho. The bill also requires state law enforcement to assume duties related to federal immigration law. But Chaney believes that “it’s up to the federal government” to sort out the “who’s who” of immigration law violators. The Idaho bill may become the worst kind of law: one that no one needs.

    Seven years ago, Arizona passed a similar law. The Department of Justice (DOJ) fought it, and the Supreme Court struck down three of the law’s four challenged provisions, emphasizing that immigration law is better left to one “national sovereign,” not “the 50 separate states.”

    One aspect of Arizona’s law survived — the provision requiring arresting officers to “verify the [arrested] person’s immigration status with the Federal Government.” The Idaho bill similarly requires that if an individual is arrested and cannot prove lawful presence in the U.S., the agency “performing the booking process” must determine the individual’s immigration status by consulting with “United States immigration and customs enforcement,” or ICE.

    In reviewing the Arizona law, the court cautioned that an immigration inquiry could not prolong someone’s arrest-related detention, and that if it did, the detention “would raise constitutional concerns.” The court found that the law contained sufficient safeguards to avoid prolonged detentions.

  • February 7, 2017
    Guest Post

    by Richard Harris, CEO, Momentum Communications

    President Trump’s Executive Order on Immigration: Executive Action Provokes A National Reaction:

    President Donald Trump, wearing a broad smile for both the cameras and his assembled audience, affixed his signature to possibly the most controversial Executive Order of his early and already tumultuous presidency. The Executive Order, bearing the title: “Protecting The Nation From Attacks By Foreign Nationals,” suspends “Visa Issuance and Immigration Privileges” to the following seven countries: Sudan, Iraq, Iran, Libya, Sudan, Somalia and Yemen. The Executive Order suspends refugee immigration for a period of 120 days and prohibits the immigration of Syrian refugee to the United States indefinitely.

    Signed into law at 4:42 p.m. on Jan. 27, 2017, President Trump’s Executive Order on Immigration is sweeping in its scope and immediate in its impact. It launched an instantaneous and spirited public response, which was in stark contrast to the applause and approval accorded to President Trump during the Executive Order’s high profile signing ceremony:

  • February 2, 2017
    Guest Post

    *This piece originally appeared on the Microsoft Blog.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Proposal calls for case-by-case exception process for law-abiding visa holders with pressing needs

    In last Friday’s executive order, the president expressly gave to the secretaries of state and Homeland Security the authority to grant exceptions on a case-by-case basis, consistent with the national interest, to issue visas and other immigration benefits. Today Microsoft is filing a formal request asking these cabinet officers to create a process to grant exceptions that will permit “Responsible Known Travelers with Pressing Needs” to re-enter the country while protecting the nation’s security. The important details for this proposal are included in our formal request and are outlined below.

    At the outset, we recognize that this proposal will not and should not end the broader debate and deliberations regarding last week’s executive order. Our company is one among many that has expressed its views, and we will continue to participate energetically and constructively in the public discussions that help define our democratic processes.

    But even amidst these debates, there is an opportunity under the executive order to address the pressing needs of real people. There currently are law-abiding visa holders who are parents that were outside the United States last Friday and therefore cannot re-enter the country. These parents are stranded and separated from their children. Other individuals are confronting genuine family emergencies such as the need to visit a critically ill parent.