Roger Williams University School of Law held a forum Monday evening exploring the legal contours and implications of Donald Trump‘s executive orders on immigration. The event was moderated by Andrew Horwitz, Assistant Dean for Experiential Education and featured Jared Goldstein, Professor of Law and an expert on Constitutional Law, Peter Margulies, Professor of Law and expert in National Security Law, and Deborah Gonzalez, Director of the Immigration Law Clinic, Associate Clinical Professor of Law and expert in Immigration Law.
Margulies was recently quoted in the Los Angeles Times regarding the order.
After a brief introduction (above) Peter Margulies explained Trump’s executive order on immigration. The order impacts three different classes of people, said Margulies, lawful permanent residents (LPR), non-immigrant VISA holders and refugees and applicants for refugee status. LPRs have “significant statutory and constitutional rights” while VISA holders have due process rights and refugees have “the fewest enforceable legal rights.”
In Margulies’ opinion Trump will re-issue the executive order sometime in the next few days to narrow the scope. The revised executive order may exempt one or two of the above groups.
As for the present executive order’s chances in the courts, Margulies believes that the present eight member Supreme Court would uphold the lower court’s opinion about the order being unconstitutional, but the addition of Neil Gorsuch to the bench, perhaps sometime in early April, might send the court in a different direction.
Deference to the President on matters of immigration “has a been a hallmark of the courts,” said Margulies.
Jared Goldstein said that though the executive order targets Muslims, the order doesn’t use those words. It never mentions Muslims or religion as a basis for being banned from entry. The argument is that the policy expresses animus against Islam, and it may violate the establishment and/or the equal protection clause.
The courts do not have to simply consider the executive order by itself when determining its constitutionality. They can use extrinsic evidence. For instance, the executive order provides exemption for refugees who are persecuted minorities, and Trump tweeted that the executive order “protects Christians.” Trump’s tweet is evidence the court can consider. The courts can also consider Trump’s drumbeat of a campaign promise that he would ban Muslims from entering the country.
At the district court hearing, Trump’s lawyers, aware that the extrinsic evidence weighed against them, argued that only intrinsic evidence, the executive order itself, should be considered. The court disagreed.
In Goldstein’s opinion, there is a case that the executive order violates due the process clause (remember that LPRs and Visa holders are legally entitled to due process) and there may be a statutory claim because the President should not be able to discriminate on the basis of religion.
One precedent that Trump is relying on is the racist 1882 Chinese Exclusion Act. That act limited immigration based on race, and the courts then held that the president’s discretion on immigration is “unreviewable.” This same legal argument was used to detain people in Guantanamo. The 9th District that issued the stay on Trump’s executive order said unreviewability is offensive.
Another complicated issue that Goldstein thinks the 9th District Court glossed over is the issue of standing. Do any of the groups impacted by the order have standing because of their outsider status?
Deborah Gonzalez said that the president has the authority to act and exclude a class from entering the country. The Immigration Nationality Act (INA) excludes discrimination based on race and place of birth but significantly, not on the basis of religion.
Immigration in the United States is quota based, said Gonzalez, every country is granted a certain number of visas. Priority is given to “spouses of US Citizens, parents and children too.” There is a discrimination clause, but that clause is based on relationship or “extraordinary skills.” This clause favors certain people, but does not disfavor others.
“Congress,” said Gonzalez, “could have given the president powers to discriminate, but didn’t.” Instead, President Trump, in Gonzalez’s opinion, “can suspend all entry, or all immigrants or non-immigrants, but not pick and choose.”
Trump’s other two executive orders relating to immigration are also important to understand, said Gonzalez. The first concerns ‘border enhancements” and mandates the building of a wall, the design and funding of a wall and the hiring of 10,000 new ICE officers to maintain the wall. The idea is to detain everyone who comes in.
Before this executive order we would allow people into the country and arrange ICE meetings, but now everyone gets detained. This means more privately owned detention facilities and more asylum officers to determine “credible fears.”
When a person enters the country, they might make a case that they fear going back to their country because the government may persecute them. This is what we mean by “credible fears.” Someone on the ground has to make that determination on a per refugee/immigrant basis.
Another disturbing part of the executive order mandates that children be repatriated, but the executive order also say that children need to be treated well.
The rest of the forum took the form of a question and answer session. I’ll do my best to sum up the questions being asked.
If an undocumented person is detained because they are accused of a crime, it turns out that ICE is under no obligation to make the person suspected of a crime available to state or municipal court on any charges against them. This means that simply being suspected of a crime may be enough to get someone deported.
Under Obama, non US citizens who have committed crimes such as moral turpitude, aggravated assault and drug crimes, could be detained. The new executive order allows ICE to detain as they see fit.
Has any evidence been presented to show that the vetting process currently used by immigration authorities is insufficient? The kind of questions Muslim immigrants can be expected to answer under the new order will be things like “Do you support American values or do you support Sharia?” as if the new things are mutually exclusive, which they are not.
A question as to how the seven Muslim countries selected for the immigration ban were determined.
Why were countries like Saudi Arabia, a place from where terrorists that have threatened the United States, not on the list of countries in Trump’s Muslim ban?
Over time, can the courts challenge the “American values versus Sharia law” aspects of the executive order as being unconstitutional in some way?
President Trump’s legal council sent a memo to the Department of Homeland Security with instructions on how the executive orders were to be interpreted. They have no authority to do that.
Can you use a disparate impact theory of religious discrimination to prove a constitutional violation?
There has been a lot of talk in the Trump administration of Islam as a political movement and not a religion. This is an alt-right, Brietbart level conspiracy theory; a way to separate Islam from religious protections in the Constitution.
What would hapen if the decision were returned to the 9th circuit en banc? This gets way out of what I know about law, but here’s a description of en banc from Google: “Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (generally consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.”