The Selective Immigration Pause.

U.S. immigration law grants to the president the right to “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or as non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  All s/he has to do is to “find that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States.”

The portion of immigration law that bars discrimination on the basis of race, sex, nationality, place of birth, or place of residence appliers specifically to the issuing of visas.  It appears to not supersede or to limit the right of the president to bar visa-holders from entering the country.

Little-noticed in the popular discussion of the case, Washington’s solicitor-general appeared to narrow the reach of the suit to a sub-set of the affected people.  “The focus of our claim is on people who have been here and have, overnight, lost the right to travel,… to visit their families,…to go perform research,…to go speak at conferences around the world.  And also, people who had lived here for a long time and happened to be overseas at the time of this order…and suddenly lost the right of return to return to the United States.”  In short, people with green cards or long-term visas.[1]  Judge James Robart appeared to accept this argument in his decision.

Washington Attorney-General Bob Ferguson went beyond this claim.  He acknowledged that the “courts generally give more latitude to the political branches in the immigration context.”  However, “Federal courts have no more sacred role than protecting marginalized groups against irrational, discriminatory conduct.”[2]  Are the Arab immigrants a “marginalized group”?  Is President Trump’s executive order “irrational”?

The Washington suit is likely to be sustained by the U.S. Court of Appeal for the Ninth Circuit.  It is the most liberal of the Courts of Appeal.  If these were normal times, then an appeal to the Supreme Court by the Trump administration probably would end with the Court of Appeal’s judgement being reversed.[3]  However, these are not normal times.  Republican refusal to pass on a replacement for the late Antonin Scalia has left the Supreme Court dead-locked between liberals and conservatives.  When the Supreme Court cannot agree, then the decision of the lower court is affirmed.[4]  So, it would appear that the immigration pause is about to go down in flames.

For most of the Obama administration, Republican attorneys-general sued to block executive orders and rules.   Many times, they won.  Now a Democratic attorney-general has sued to block President Trump’s temporary-for-the-moment ban on some immigrants and refugees.  It is curious that this one suit has brought on “a constitutional showdown that could leave a mark on the law for generations to come…”[5]   A constitutional showdown would arise only if the Trump administration refused to abide by a court decision.  Which it has not yet done.

But I’m not a lawyer.  Obviously.

[1] If this reading is correct, then Washington is not challenging the executive’s authority to bar refugees or new entrants to the United States.

[2] No one who grew up in the Pacific Northwest or California can have any doubt that Ferguson is referring to the criminalization of Japanese ancestry on the West Coast during the Second World War.

[3] A 2010 study by the American Bar Association found that of the small number of the Ninth Circuit’s decisions reviewed by the Supreme Court, 80 percent were overturned, compared for a national median of 68.29 percent.

[4] If I understand what I read.  Hmmm…

[5] Adam Liptak, “The President Has Much Power Over Immigration, but How Much?” NYT, 6 February @017.

1 thought on “The Selective Immigration Pause.

  1. Pingback: Memoirs of the Addams Administration 5. | waroftheworldblog

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