Pratheepan Gulasekaram

  • October 18, 2017
    Guest Post

    by Pratheepan Gulasekaram, Professor of Law, Santa Clara University

    Last week, Attorney General Jeff Sessions issued a “last chance” warning to several “sanctuary cities.” The letters - sent to Cook County, Illinois; Chicago, Illinois; New Orleans, Louisiana; New York, New York; and Philadelphia, Pennsylvania – informed local officials that their policies regarding investigation of an individual’s immigration status, or their reporting of the same, may be in violation of federal law. Further, if they do not provide additional assurances that they are in compliance with the specified federal law by October 27th, they risk losing certain law enforcement grants (Byrne/JAG funds) that the Department of Justice (DOJ) administers to localities to augment their policing, equipment, prosecution, corrections, drug treatment plans, victim or witness programs, or other related efforts. 

    These ominous letters, with accompany rhetoric from the Attorney General, continue the Trump Administration’s months-long campaign against cities that have exercised their constitutionally-protected prerogative to decline participation in federal immigration enforcement efforts. As has become routine for Sessions, this latest round includes the same misrepresentations linking immigrants and criminality that he and the President have consistently spewed, with the Attorney General repeating the falsehood that sanctuary policies make cities more dangerous.

  • May 17, 2017
    Guest Post

    by Pratheepan GulasekaramProfessor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

    My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points.  The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.

  • January 31, 2017
    Guest Post

    by Pratheepan Gulasekaram, Professor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    This past week, Donald Trump issued several executive orders limiting immigration and foreboding greater enforcement. The headlines for the past few days have been dominated by his “Muslim ban,” a clumsy, crude and cruel attempt to block any immigration from seven majority-Muslim nations, a complete ban on all refugees for four months, and an indefinite ban on Syrian refugees. Also garnering significant attention is his order reinvigorating wall-building at the U.S.-Mexico border. That order, along with his directive to massively increase enforcement officers may or may not materialize, as they will likely require massive budget appropriations that Congress may balk at. Comparatively less attention has been paid to the orders that will likely begin to reap consequences over the next several months, like the ones re-arranging enforcement priorities and dramatically expanding expedited removal processes (both, likely at the expense of due process standards and other individual liberties). Here, I want to focus on another aspect of his orders that has received comparatively less attention: Trump’s attempt to coerce state and local jurisdictions into aiding with interior enforcement.

    At first blush, Donald Trump’s executive order on interior immigration enforcement reads like a death-knell to cities that maintain so-called “sanctuary” policies on immigration. It imperils state and local governments and law enforcement agencies with loss of federal funds unless they comply with a particular provision of federal immigration law. Despite his order’s menacing language, Trump’s defunding threat rings hollow.

  • June 27, 2012
    Guest Post

    By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside.  The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.

    Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona.  He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.

    Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.

    But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070.  Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants. 

  • April 23, 2012
    Guest Post

    By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law.  Professor Gulasekaram teaches Constitutional Law and Immigration.  He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.

    Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070.  Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound.  For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.

    Except, it likely will not provide this anticipated resolution.  While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation.  First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion.  Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state.  Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision.  And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law.  I briefly elaborate on each of these points below.