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June 12, 2017

Ninth Circuit Joins the Fourth Circuit in Rejecting Trump's Revised Travel Ban

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

It is a big immigration news day!

Agreeing with the Fourth Circuit, the Ninth Circuit today in a per curiam opinion (Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez) joined the Fourth Circuit and delivered the Trump administration's revised travel ban another setback.  Here is the introduction (and conclusion):

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in t his appeal o f the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”) , “Protecting the Nation From Foreign Terrorist Entry Into the United States. ” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens , and to take actions to protect the American public. But immigration, even for the President, is not a one - person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States. ” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The court rested its conclusion on statutory grounds -- that the requirements of Immigration and Nationality Act § 212(f), 8 U.S.C. § 1182(f) had not been satisfied -- and did not reach the Establishment Clause holding of the district court.  At the outset, it found that standing was established and that the case was "ripe" for review. 

The court emphatically rejected the notion that the travel ban was not subject to judicial review:  "Whatever deference we accord to the President's immigration and national security judgments does not preclude us from reviewing the policy at all. [citations omitted] . . . . We do not abdicated the judicial role, and we affirm our obligation `to say what the law is' in this case.  Marbury v. Madison, 5 U.S. 137, 177 (1803)." (Slip opinion, p. 32).  The court stated that "[i]n conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality."  Slip op., p. 43.

The court summarizes its order in this concluding paragraph:

We affirm in part and vacate in part the district court’s preliminary injunction order. As to the remaining Defendants, we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending [the U.S. Refugee Program] for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017. We vacate the portions of the injunction that prevent the Government from conducting internal reviews, as otherwise directed in Sections 2 and 6, and the injunction to the extent that it runs against the President. We remand the case to the district court with instructions to re-issue a preliminary injunction consistent with this opinion. (footnote omitted).

June 12, 2017

Breaking News: Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

This morning, the Supreme Court decided Sessions v. Morales-Santana and held that the Constitution applies to gender distinctions in the derivative citizenship laws.  Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote the opinion for the Court.  Justice Thomas, joined by Justice Alito, concurred in the judgment in part.  Justice Gorsuch took no part in the consideration or decision in the case.

The issues in the case were:  1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

The U.S. Court of Appeals for the Second Circuit ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) The court of appeals declared Morales-Santana a U.S. citizen.

In previous cases raising similar issues, a majority of the justices had not been in agreement. 

Justice Ginsburg noted that the statutory provisions in question "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  (citations omitted).   Gender distinctions now are subject to heightened scrutiny under the Equal Protection Clause.  "Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we [have] declared unconstitutional . . . ." In the majority's view, the gender distinctions are "stunningly anachronistic" and violate the Equal Protection guarantee.

The majority, however, declined to rewrite the statute.  That is within the purview of Congress.  In the interim, the Court agreed with the U.S., government and ruled that a five-year requirement under another subsection of the statute should apply prospectively to children born to unwed U.S.-citizen mothers.

Justice Thomas, concurring in part in the judgment, would not decide the constitutional issues but would simply find that the Court could not provide the relief sought by Morales-Santana.

Immigration law has been exceptional in its immunity from judicial review.  Sessions v. Morales-Santana is another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws. Six justices agreed that the Equal Protection Clause applied to gender distinctions in the derivative citizenship laws.  We shall see whether the decision marks the beginning of a trend in this Term's immigration decisions -- several that raise constitutional questions.

May 31, 2017

Opinion analysis: Justices continue to apply ordinary modes of statutory interpretation to the U.S. immigration laws

(Cross-posted from SCOTUSblog.)

By Kevin R. Johnson

With the new Trump administration, immigration has been in the national news. President Donald Trump and Attorney General Jeff Sessions have emphasized that the U.S. government will target "criminal aliens" in its removals. At various times, Trump has focused on crimes committed by Mexican immigrants. In the first of a number of immigration decisions from the 2016 term, the Supreme Court today decided its first crime-based removal decision in the new administration, Esquivel-Quintana v. Sessions. The case involved an immigrant from Mexico convicted of what could be viewed as a "sex crime." The decision in favor of the lawful permanent resident - written by Justice Clarence Thomas for a unanimous court (minus Justice Neil Gorsuch, who did not participate) - might be surprising to some observers.

The facts of the case are relatively simple. When Juan Esquivel-Quintana, a lawful permanent resident from Mexico, was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. Section 1101(a)(43) of the Immigration and Nationality Act defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court's seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the U.S. Court of Appeals for the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

As described by Thomas, the question before the court was "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA." The court's answer was brief and straightforward: "We hold that it does not."

The court first reiterated the standard test for determining whether an immigrant's "conviction qualifies as an aggravated felony," as set forth in several recent cases:"[W]e 'employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime.'" Under the categorical approach, "we ask whether the state statute defining the crime of conviction categorically fits within the 'generic' federal definition of a corresponding aggravated felony." In other words, "we presume that the state conviction "rested upon ... the least of th[e] acts" criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime." Under that approach, Esquivel-Quintana's state conviction is "an 'aggravated felony' under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor."

That was not the case here, the court concluded. After examining Section 1101(a)(43)(A) of the INA, Thomas observed that the statute's requirement that the sexual abuse be "of a minor" means that "the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim." The court pointed to statutory rape laws as a prime example of "this category of crimes," and relied on "reliable dictionaries" to define the "'generic'" age of consent in those laws as 16. The court rejected the "everyday understanding of 'sexual abuse of a minor'" offered by the government, which would have included activity involving victims up to the age of 18, pointing out that "the Government's definition turns the categorical approach on its head" by conditioning the crime on the particular laws of each state."

Moving to a consideration of the INA provisions surrounding Section 1101(a)(43)(A), the court emphasized that the statute's definition of "aggravated felony" includes murder and rape, and that the "structure of the INA therefore suggests that the sexual abuse of a minor encompasses only especially egregious felonies." According to the court, related federal statutes as well as state criminal codes also support the conclusion that "for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16." "Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under §1101(a)(43)(A)."

By resolving the case on statutory grounds, the court avoided the more far-reaching questions raised by the majority and dissent in the court below. Thomas stated: "We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board's interpretation. Therefore, neither the rule of lenity nor Chevron applies." A decision on either of those grounds would have had more far-reaching implications for immigration law than strict reliance on the interpretation of the statutory phrase "sexual abuse of a minor."

Esquivel-Quintana v. Sessions fits in neatly with the court's recent immigration decisions, such as Mellouli v. Lynch in 2015 and Moncrieffe v. Holder in 2013, which also applied ordinary modes of statutory interpretation to the immigration laws. In a series of crime-based removal decisions, the court has engaged in close parsing of the language of the statutory provisions in question. This approach is no different than that employed by the court in other cases. Although not breaking new ground today, the court continues to move forward in applying ordinary analytical approaches to immigration law, which historically had been in certain respects "exceptional" in the amount of deference given to the Board of Immigration Appeals. Immigrants have prevailed more often than not in the court's recent decisions as the U.S. government has pressed cases, like Esquivel-Quintana, which the court found to be unsupported by the immigration statute.

 

May 16, 2017

Supreme Court Immigration Watch: The 2016 Term -- Look Out for Six Decisions

(Cross-posted from Immigration Prof)

There are a number of immigrations cases currently before the Supreme Court (and here).  We should get decisions by the end of the Term in June and will should get a better idea of how the newest Supreme Court Justice, Neil Gorsuch, looks at immigration law.

The cases before the Court raise a variety of different types of issues.  The decisions could affect the direction of judicial review of the constitutionality of immigration laws and policies.  In recent years, as explained in this article, the Supreme Court has slowly but surely moved immigration law into the mainstream of American jurisprudence. 

The cases, which have been discussed regularly on this blog, include:

1.  Sessions v. Morales-Santana Argued November 2016.  Gender Distinctions in Derivative Citizenship.

Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.    The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional. 

The Supreme Court has been divided on the constitutionality of gender distinctions in the citizenship laws in previous cases.  See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998).  This case allows the Court to reconsider the issue.

 

2.  Jennings v. Rodriquez Argued November 2016.  Constitutionality of Immigration Detention.

Issue(s): (1) Whether noncitizens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist noncitizens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for noncitizens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the noncitizen is entitled to release unless the government demonstrates by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community, whether the length of the noncitizen’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. 

The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention.  The panel also held that immigration judges must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.

 

3.  Sessions v. Dimaya Argued January 2017.  Constitutionality of Criminal Removal Provisions.

Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague.  In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague.   The Board of Immigration Appeals had found that  burglary was a "crime of violence" for removal purposes.  Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992. 

 

4.  Esquivel-Quintana v. Sessions  Argued February 2017.  Interpretation of "Sexual Abuse of Minor" for Removal.

Issue:  Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

 

5.  Hernandez v. Mesa Argued February 2017.  Liability for Cross Border Shooting by Immigration Officer.

This case raises the following questions (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

 

6.  Maslenjak v. United States Argued April 2017.  Impact of Misrepresentation for Purposes of Denaturalization. 

The denaturalization case raises the question whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.  Amy Howe in a preview to the argument on SCOTUSBlog concludes:

"The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship."

Maslenjak v. United States makes it six immigration cases before the Supreme Court this Term, a large number compared to the   immigration cases reviewed the last few Terms.

***

The Court will consider the six immigration cases against a backdrop of considerable public discussion -- and many legal challenges -- to President Trump's executive orders on immigration enforcement.    The role of the courts in reviewing the immigration actions of the President have been debated publicly over the last few months.

Stay tuned as we will see decisions in those cases, which involve crime-based removals, constitutional challenges to provisions of the Immigration and Nationality Act, a cross-border shooting, deference to agencies, and more.

Part of the reason that we see extreme measures in the immigration laws is the limited scope of constitutional rights of immigrants recognized by the Supreme Court. Historically, under the plenary power doctrine, noncitizens outside the United States have had few, if any, rights to enter the country. In contrast, noncitizens inside the country have seen the steady expansion over time of rights, especially to procedural due process.

Over the last fifty years, the Supreme Court has moved toward a more normal immigration jurisprudence and away from the plenary power doctrine. That trajectory has been marked by the use of ordinary methods of statutory interpretation in interpreting the immigration statute; the Supreme Court also has adhered to ordinary administrative deference doctrines in the review of immigration decisions. Moreover, the Court on a number of occasions has applied routine constitutional avoidance doctrines to avoid invoking the plenary power doctrine, which is out of synch with modern constitutional jurisprudence, and its harsh results. This pattern of avoiding the decision of constitutional questions in ensuring judicial review of immigration matters can be understood as an effort by the Court to avoid invoking the plenary power doctrine and its stark outcomes.

Commentators have observed the slow movement of immigration law toward the mainstream of constitutional jurisprudence. In essence, the plenary power doctrine is slowly but surely eroding away. In a number of cases, the Supreme Court effectively moved toward expanding the rights of noncitizens seeking admission into the United States.] Among other indications, in Kerry v. Din (2012), six Justices found that a State Department consular officer's denial of a visa was subject to rational basis review, which is a move away from the doctrine of consular non-reviewability.

One possibility is that, in the current cases before the Court, the decisions will move us toward a more unexceptional immigration law that is more consistent with general American constitutional law.

President Trump’s immigration initiatives push the envelope of contemporary constitutional norms, virtually daring the courts to address their constitutionality. By taking brash immigration policy measures that test constitutional limits, such as the travel ban and expanded expedited removal, the Trump administration ultimately may force the Supreme Court to reconsider the plenary power doctrine.Conclusion

The aggressive Trump immigration measures likely will continue to generate legal challenges centering on the rights of immigrants. Courts, which have been moving in a direction toward further recognition of immigrant rights for at least a generation, may intervene – as some have already – to curb some of the excesses of the Trump immigration initiatives. However, the long term solution to the problems of the modern immigration system is legislative reform of the immigration law. Deep and enduring reform of the comprehensive immigration statute forged in the Cold War is necessary for the nation to effectively and fairly address the immigration realties of the 21st century.

 In short, the coming weeks may tell us a good deal about the future of immigration law in the United States.  Stay tuned.

 

 

May 4, 2017

Plenary Session on Being Undocumented at UC in the Trump Era

Maria Blanco of the UC Immigrant Legal Services Center (housed at UC Davis School of Law) is speaking at the 8th Annual University of California International Migration Conference at UC Berkeley on May 13.

The topic is "Being Undocumented at UC in the Trump Era."

Find more information and registration details at haasinstitute.berkeley.edu/undocu2017.

 

 

April 21, 2017

Flores v. Sessions: UC Davis Immigration Law Clinic goes to the Ninth Circuit, Defending the Rights of Detained Children

Cross-posted from Immigration Prof Blog.

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Flores v. Sesssions in which the U.S. government seeks an emergency stay in an action involving the 1997 Flores Settlement Agreement, which addressed the treatment of minors in custody of the Department of Homeland Security.  The Flores litigation has been going on for years and this appears to be a last ditch attempt by the U.S. government to detain noncitizen minors -- which increased with the increase in Central American asylum-seekers in 2014.   The panel that heard arguments were Judges Stephen Reinhardt, A. Wallace Tashima, and Martha Berzon.   

Law student Fabián Sánchez Coronado '18 attended the argument and wrote about the experience.

From L-R: Michael Benassini '18, Holly Cooper '98 of the Immigration Law Clinic, Carlos R. Holguín of the Center for Human Rights and Constitutional Law, Eduardo Osorio '18, and Fabián Sánchez Coronado '18.

On April 18, 2017, myself and other students from the Immigration Law Clinic and Civil Rights Clinic had the opportunity to attend Oral Argument at the Ninth Circuit Court of Appeals for Jenny Flores v. Jefferson Sessions, III, a case dealing with the rights of children in immigrant detention. 

The case arises out of a 20-year settlement agreement - the "Flores Settlement" - between plaintiffs and the government. At issue is Paragraph 24 of the Flores Settlement, which guarantees minors in detention the right to a bond redetermination hearing.

Last summer, the Immigration Law Clinic's Co-Director, Holly S. Cooper '98, teamed up with Carlos R. Holguín, General Counsel at the Center for Human Rights and Constitutional Law, to bring an enforcement action in federal court after the government refused to comply with its duties under the settlement, thereby denying detained children basic due process. 

On January 20 of this year, Judge Dolly M. Gee of the U.S. District Court for the Central District of California granted the motion to enforce the settlement. Weeks later, the government filed an emergency motion in the Ninth Circuit to stay the District Court's order, paving the way for a renewed fight over the rights of children in immigrant detention. 

After the Ninth Circuit granted the stay and expedited briefing, a group of us from the Immigration Law Clinic and the Civil Rights Clinic rolled up our sleeves and got to work, helping Professor Cooper and Carlos Holguín prepare the case. Wesley Cheung '18, Eduardo Osorio '18, Michael Benassini '18 and I helped ready the Plaintiffs' brief and prepare the materials for Oral Argument. 

The experience of working on an appellate brief - and attending oral argument at the Ninth Circuit - was a highlight for me, as I'm sure it was for my fellow law students. After spending the academic year working on various immigration and civil rights cases with our respective clinics, it was great to sit at counsel's table for this particular occasion.

March 30, 2017

Opinion Pieces by King Hall Faculty

King Hall faculty serve as regular contributors of opinion pieces to the media. Here are a few recent examples.

Dennis J Ventry, Jr. in The New York Times: Why Steven Mnuchin Wants a Stronger I.R.S.

"President Trump's Treasury secretary, Steven Mnuchin, knows that investing in the Internal Revenue Service yields significant returns - he said as much during his confirmation hearings. And he's right: Every dollar spent on the agency returns $4 in revenue for the federal government, and as much as $10 when invested in enforcement activities.

Mr. Mnuchin's boss doesn't seem to care, but he should. And not just because the I.R.S. more than pays for itself. Cutting funds for the I.R.S., which has already endured years of budget cuts, would make it impossible for the president to pay for things he says he cares about, including infrastructure, Social Security and the military."

Kevin R. Johnson in The Sacramento Bee: Cuts to legal services for rural, poor people would hurt those who helped elect Trump

"President Donald Trump's proposed budget calls for the elimination of all funding for the Legal Services Corporation, the nation's single largest funder of civil legal aid to low-income people. The proposed cut would hurt the poor, rural voters who helped elect him.

Legal Services Corporation works to ensure that low-income Americans have access to much-needed legal assistance. It is often the sole lifeline for vulnerable people with legal problems that affect their health, housing, safety and economic security.

Continued funding makes basic fiscal sense: LSC delivers far more economic benefits to the country than what it costs to support the program."

Kevin R. Johnson in Salon: Debating the big questions on immigration: What rights do immigrants have - and is the President free to bar them?

This was an online panel for Salon, in which Dean Johnson was a participant.

"Here to add nuance to the immigration debate are three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about Trump’s travel ban and deportation policy but also expected future initiatives from this administration. These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives?"

March 24, 2017

The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

By Vikram Amar and Alan Brownstein

Cross-posted from Justia.com:

One of the vexing legal questions raised by President Trump's original and revised executive orders concerning entry into the United States by nationals of several Middle Eastern and African countries is whether and how courts ought to take into account the subjective motives behind the executive order, whether or not these motives are reflected in the text of the orders themselves. Many people think of the executive orders as "Muslim bans"-even though there is no mention of Muslim peoples in the orders themselves-because they credit rhetoric prior to the executive orders that may tend to suggest anti-Muslim sentiment has been on the president's mind as he has crafted these entry limitations. (For these purposes critics are asserting that a desire to exclude persons from one religious group would be impermissible, although in the immigration setting that proposition might be a contested question.)

Permissible (and Impermissible) Uses of Motive to Strike Down Laws

Consideration of direct evidence of impermissible subjective motive has been a confused area of constitutional law. Courts have often expressed-as the Supreme Court did in United States v. O'Brien, the case involving a famously unsuccessful free speech challenge to a federal law prohibiting destruction of draft cards-a reluctance to use extrinsic proof of invidious motive to strike down laws that would otherwise pass constitutional muster. Courts have offered a variety of reasons for their wariness to look into motive. One is that courts would be in the position of accusing co-equal branches of pretext and dishonesty (or at the very least unawareness of their own true motivation), and that can create friction between the branches. (Think of how courts have reacted to President Trump's allegations of judicial dishonesty.) Another is the idea that a president or legislature whose action is struck down because of a bad motive can simply reenact the policy for a good motive, in which case courts will have to uphold the new enactment, raising the question why it was worth the hassle to invalidate the action in the first place. (One rejoinder to that is that courts won't always be convinced that the second enactment is taint-free, and may not uphold it. Another is that if the second enactment is adopted for pure rather than invidious reasons, it is a qualitatively different enactment insofar as motive, and the way the polity understands it, is an essential part of a law: Justice Holmes once reminded that even a dog knows the difference between being kicked and being tripped over.)

Yet another reason proffered for refraining from motive analysis is that the motive of many legislative bodies is hard to discern-in Congress, there may be hundreds of motives of hundreds of legislators in enacting a particular law. For these and other reasons, even when some justices want to look at subjective evidence of motivation (as with Justice Kennedy's opinion in the Florida case involving an anti-animal-sacrifice law that was struck down for violating free exercise of religion principles), other justices decline to join them in doing so.

Notwithstanding these concerns, however, courts have been willing to accept direct proof of impermissible motive in certain doctrinal areas. Perhaps the most prominent is the equal protection norm of the Fourteenth and Fifth Amendments. When a facially neutral law that draws no problematic classifications between groups can be shown to have a disparate impact against certain classes, and when there is strong enough evidence that a desire to harm those groups was a driving factor behind the law's enactment, courts have been willing to strike those laws down. The evidentiary threshold a challenger must satisfy is high, but at least the courts are open to the evidence if a strong case is made.

A second (and perhaps similarly equality-driven) area of jurisprudence where the Court has made use of subjective evidence of improper motive is the Establishment Clause of the First Amendment. Unlike in the Free Exercise Clause setting mentioned above, the Court in several Establishment Clause rulings has explicitly required that government's motive be either secular, or at the very least not a desire to favor some sects over others. In Wallace v. Jaffree, the Court struck down an Alabama law mandating a moment of silence at the beginning of public school classes because the Court concluded, based in significant measure on historical evidence and legislative history, that the law was a backdoor attempt to reintroduce prayer in the schools. And in McCreary County v ACLU of Kentucky, the Court invalidated the placement of a Ten Commandments display on public property, again in part based on a conclusion of improper motives of religious favoritism. These are the cases (again, assuming they apply in the immigration setting) on which challengers to President Trump's executive orders have been relying.

In short, courts appear to weave their way through many complex factors in evaluating claims based on invidious or impermissible motives. Even in equal protection cases, where the Court has remained nominally open to claims of invidious motivation, the size of the decision-making body may be critical to whether a case can be made. As the Court explained in Hunter v. Underwood, "the difficulties in determining the actual motivations" of a governing institutional body increase substantially when a claim is brought against the U.S. Congress as opposed to a county board of commissioners.

Thus, the nature of the constitutional claim, the size of the decision-making body, and the persuasiveness of the extrinsic evidence of impermissible motive will all be considered, with different factors controlling the Court's analysis in various cases. In Hunter, for instance, the Court struck down on equal protection grounds a provision of the 1901 Alabama Constitution denying the right to vote to any person convicted of a crime involving moral turpitude, because the Court found that the all-white state constitutional convention that adopted the provision did so with the intent of disenfranchising black residents in particular. The large size of the convention did not insulate it from an equal protection challenge given the strength of the historical evidence establishing the invidious motivation of the convention participants.

On the other hand, the size of the decision-making body may have been critical in some free speech cases. As noted, the Court in O'Brien downplayed the idea that an act of Congress could be struck down because of the intent of some legislators to enact it for the purpose of suppressing protected speech. Yet in cases involving much smaller decision-making bodies, such as Mt. Healthy City School District v. Doyle, the Court recognized that a teacher could assert a valid free speech claim challenging the school board's decision not to rehire him if the teacher could show the board was punishing him for protected speech in which he had engaged.

President Trump's Executive Orders Restricting Immigration

Viewed against this complicated and somewhat indeterminate background, several factors could be relevant to the challenges to President Trump's revised executive order that are based on an alleged intent to further a constitutionally impermissible purpose-religious discrimination against a particular faith community. To begin with, the authority to issue an executive order rests with one person alone, the President of the United States. Thus, struggling to determine the intent of a large body is not a problem here.

Further, the challenge to the order is based on the Establishment Clause, an area of law in which there is significant precedent accepting direct inquiry into government motive as the basis for evaluating and invalidating state action. Indeed, this dimension of the Establishment Clause, the prohibition against discrimination against minority faiths, overlaps and resonates with equal protection doctrine. As we have explained, there is probably no area of constitutional law in which direct inquiry into motive has been more accepted than equal protection jurisprudence adjudicating claims against invidious discrimination.

Finally, it should be clear that attempts to structure a law to mask improper intent do not always insulate impermissibly motivated state action from constitutional review. In Hunter, historians documented how the Alabama constitutional convention had an anti-black agenda on their minds, even though the disenfranchisement provision in question was written more broadly and more neutrally. Thus, the fact that the president might have drafted the new order to scrupulously avoid reference to religious discrimination, while relevant, is not necessarily dispositive.

Other Factors at Play

There are, however, several open legal questions that may very well support a court's decision to uphold the President's order. One large question, noted above, is whether domestic Establishment Clause norms apply with full force in the immigration setting. In Kleindienst v. Mandel, the Court wrote: "We hold that when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will n[ot] look behind the exercise of that discretion . . . ." Ultimately, succeeding with an Establishment Clause claim with require grappling with this high level of judicial deference.

Another issue is whether statements made during a campaign by a candidate for office should be considered reliable evidence as to the official's intent after he is elected and adopts policies. Statements made during the heat of a campaign are arguably different than statements made during official deliberations by elected representatives. There is certainly a plausible argument that what is said during a campaign stays in the campaign and does not carry over as an indication of intent after an official is elected.

While this contention has considerable force, there is an argument on the other side. Much of what an elected official says has a dual audience; the government actors he is trying to influence to secure adoption of a regulation and the constituency who elected him whose support will be necessary if he is to stay in office. Elected officials are always at least in part in campaign mode. It might be difficult to state a clear rule about what evidence of invidious intent will be inadmissible campaign rhetoric and what may be considered to be probative in the adjudication of constitutional claims. This is particularly the case when one recognizes that one candidate campaigning for office is often an incumbent whose campaign and "official" statements are inherently intertwined.

Two other related issues may be even more difficult to resolve. As noted earlier, one argument against invalidating a regulation based on direct inquiry into legislative motive is that the same law in most cases could have been adopted for legitimate reasons too. The adjudication of the president's executive order presents a stark example of this problem. What evidence must be presented by the government to convince a court that, even if President Trump did or does harbor some anti-Muslim sentiment, the same order would have been issued even in the absence of such intent? If any established impermissible intent ended up not being a "but for" cause of the executive order, then it should not be a basis of invalidation. But the government may have to present a fair amount of evidence of objective reasonableness to rebut the influence of invidious motives-if the courts recognize and care about such motive claims in this setting.

Finally, if an impermissible motive was a driving force behind the initial order, has it dissipated such that the revised order should be free from its taint? Time would obviously be one factor to take into account in answering such a question. But how much time? And what other factors? Changes in the contours of the policy that seek to make it more neutral? A formal acknowledgement by the president that he shouldn't take into account religious favoritism? The fact that the regulation was evaluated and supported by government officials and agencies other than those who initially endorsed it for impermissible reasons? These are complex questions that appellate courts may have to address in this setting if, and this is a significant if, they allow a motive-based Establishment Clause challenge to immigration orders to go forward.

 

March 17, 2017

Chief Justice of California Tani Cantil-Sakauye '84 Objects to Immigration Enforcement Tactics at California Courthouses

Cross-posted from Immigration Prof Blog.

The Chief Justice of California Tani Cantil-Sakauye has expressed concerns with federal immigration tactics at California courthouses in the following letter:

Dear Attorney General Sessions and Secretary Kelly:

As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. 

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws.

Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.

Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.

Each layer of government - federal, state, and local - provides a portion of the fabric of our society that preserves law and order and protects the rights and freedoms of the people. The separation of powers and checks and balances at the various levels and branches of government ensure the harmonious existence of the rule of law.

The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary's ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.

-Chief Justice Tani G. Cantil-Sakauye

March 16, 2017

"Crisis Migration" Conference and Related Events

Today brings a wealth of immigration-related events to King Hall. The Crisis Migration conference, co-sponsored by the School of Law and the Max Planck Institute, among others, has brought together leading scholars from around the world.

I am participating in the panel on "Crisis Migrants and Public Welfare Policies as Immigration Enforcement: The United States." Other conference participants from King Hall include Professors Leticia Saucedo, Brian Soucek, and Rose Cuison-Villazor, as well as alum Jihan Kahssay and law students Sylvia Cunningham, Stephanie Medina, Sara Ehsani-Nia, and Kyle Edgerton.

In addition, during the lunch hour, the California International Law Center presented "Refugees in Europe and South Africa" by Ulrich Becker of the Max Planck Institute and Dean Letlhokwa George Mpedi of the law school at University of Johannesburg. In the afternoon, renowned immigration attorney and MacArthur fellow Margaret Stock spoke on "Refugees and National Security."