Trump's Immigration Roll-Out and its Implications for SCOTUS Nomination Battle

This post ponders President Donald J. Trump's first executive order on immigration in light of the upcoming SCOTUS nomination battle over the Hon. Neil Gorsuch, Circuit Judge of the U.S. Court of Appeals for the Tenth Circuit. According to Fox News, between the Friday and Monday after the Trump administration implemented its first executive order on immigration approximately 348 visa holders weredenied the ability to board U.S. bound flights. An additional 200 people who landed at U.S. international airports were denied entry or re-entry. Fox News also reported that in the same 3 day period, "more than 700 [people] were questioned by U.S. Customs and Border Protection officials in airports – including 394 legal U.S. residents."

Some—even those within the President's own cabinet—have already questioned the legality of the Order. Former acting Attorney General Sally Yates "directed the Justice Department attorneys not to defend." Soon thereafter, she was relieved of her duties and replaced by Dana Boente, the former U.S. Attorney for the Eastern District of Virginia. Washington State has filed a lawsuit alleging the Order causes irreparable harm to its citizens—both human and corporate. The United Nations Human Rights chief decried theOrder was"forbidden under human rights law."

It may be unlikely that Judge Gorsuch will reveal whether the Order in either content or application violated (or came close to violating)an alarming list of constitutionalrights and federal laws. Instead, this post attempts to assess the constitutional questionsimplicated by the Order. In doing so, this post also explores the questions that could be posed to Judge Gorsuch.

Trump's First Immigration Executive Order

On Friday, January 27, 2017—a little over one week into his presidency—Trump made good on a signature campaign promise when he signed an executive order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States(“the Order”). The Order declared current vetting measures insufficient to “stop attacks by foreign nationals who were admitted to the United States.” The Order did not identify any specific failure of current vetting measures. Instead, the Order declared it necessary to “immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”

In furtherance of his promise to “keep America safe,” President Trump declared that individuals who were from seven majority-Muslim countries (Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen) would be prohibited from entering the U.S. The Order “proclaim[ed] that the immigrant and nonimmigrant entry into the United States of aliens from [the countries listed above] . . . would be detrimental to the interests of the United States.” The Order applies for 90 days for immigrants and nonimmigrants with visas or green cards and 120 days for refugees.

Over the next 24 hours, President Trump appliedthe Orderwithout regard to whether the affected traveler had a valid travel document from or a protected legal status in the U.S.—factors that in the prior 24 hours would have rendered entry or re-entry a nonissue.Now the determining factorwas the nationality or national originofthe foreign traveler.

Because the Order went into effect almost immediately, affected travelers at foreign airports were prohibited from boarding flights to the U.S. Affected travelers already en route were informed upon arrival that they would either be returned to their country of origin or held for an unspecified amount of time until it could be determined whether they were a threat to national security. By its own terms, the travel ban was never intendedto apply toforeign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas. There does not appear to be any complaints that the Order was applied to these categories of foreign travelers.

A Department of Homeland Security (DHS)official reported that in the immediate hours after the Order took effect the U.S. denied entry to only approximately 100 travelers from the seven affected countries. The official could not say how many travelers who sought entry had left the United States. Nor could the official say how many travelers were still being detained. The official also failed to provide information about the then reported173 individuals who were toldthey could notboard U.S. bound aircraft.

Public Response

Once reports surfacedabout the treatment of the affected travelers, civil rights organizations and concerned citizens across the country took to the courthouses and to the streets. Within 48 hours, tens of thousands had gathered in protest at airports around the country. Federal courts in New York, Virginia, Massachusetts, and Washington enjoyed enforcement against legal permanent resident and green card holders who were either turned away from or detained at U.S. airports. Federal courts alsoorderedDHS officials to provide affected travelers with counsel beforeany additionalremovals or indefinite detentions.

After federal courts agreed the methodologygoverning the roll-out would cause irreparable injury, reports surfaced that the President Trump's special advisers's dictated the application of the Order to legal permanent residents and holders of other types of official travel documents (apparently against the wishes of the DHS and other federal agencies). After three subsequent changes of position on the issue from the President's office,the Secretary of Homeland Security issued the following statementon Sunday evening, January 29, 2017,approximately 48 hours after the Order took effect:

“In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

By the time this statement was released, lawyers had set up camp at airports across the nation. Those lawyers reported that despite the Secretary's statement and the orders of the federal courts, travelerswere still being denied entry onto flights. Others continue to be either denied entry at border checkpoints or detained at international airports.

During confirmation hearings, Judge Gorsuch will likely be questioned about whether these events raise questions of procedural and substantive due process as well asequal protection. Judge Gorsuch will also likely be probed about whether the Order implicates the same limits on executive power as that the U.S. Court of Appeals for the Fifth Circuit applied to President Obama’s deferred immigration order last year. Finally, Judge Gorsuch may be asked to identify whether the Order raises questions of federalism between state and federal governments.

Procedural Due Process

The right of procedural due process is protected by the Fifth Amendment, which applies to all branches of the federal government. Procedural due process imposes requirements before implementation of certain government decisions. Those requirements include notice and an opportunity to be heard at a meaningful time and a meaningful place. In general, the notice and hearing requirements of procedural due process apply to immigration proceedings, including the determination of whether an individual is eligible for asylum or entry (and re-entry) into the U.S. Clearly, President Trump failed to provide notice or a hearing tothe affectedtravelers, even iftemporarily.

Because Trump’s administration has not been forthcoming regarding the length of detentions at airports in the U.S. or abroad, it is difficult to assesswhether procedural due process claims are more extensive. That should not preclude questions to Judge Gorsuch on this issue, specifically the scope of executive power to denyprocedural due process rights of the affected travelers.

Substantive Due Process/Equal Protection

The right ofsubstantive due process is protected by the Fifth Amendment, which applies to all branches of the federal government. Substantive due process protects citizens and noncitizens from infringement on their fundamental rights and liberty interests. It should be noted that foreign travel to or from the U.S. is not a fundamental right for any citizen, much less any noncitizen. (FYI—Domestic travel within the U.S. is a fundamental right protected under the 14th Amendment Privileges and Immunities Clause as well as Article I, section 2 of the U.S. Constitution.)

Even though foreign travel is not a fundamental right, it is a liberty interest that applies against actions of the executive branch and there must be a rational basis for most executive acts. This means that government action cannot be deemed arbitrary and there must be a sufficient relationship between the purpose of the Order and the methods for achieving that purpose.

The substantive due process issues raised by the Order could be difficult for Judge Gorsuch—should he choose to answer questions on the subject. The Order failed to identify what part of the current vetting process was insufficient to ensure that the affected travelers did not pose a national security risk. Thus, determining the rationality of the Order—and examining how the implementation of the Order relates to its goal—could beimpossible. But perhaps Judge Gorsuch could answer how a court should go about analyzing the question?

Perhaps Judge Gorsuch will be reminded that according to one estimate, up to 90,000 legal permanent residents could be affected should they seek to travel outside of the United States. Some of these individuals have been green card holders for decades. There is no publicly available evidence that any of these individuals posed a national security threat. Yet, the Order potentially bars them from re-entering the U.S. within the next 90 days. This will effectively limit them from exiting for fear that they would be unable to return.

Judge Gorsuch may also be informed that the Order is “wildly” over- and under-inclusive, as been repeatedly pointed out—most persuasively by Benjamin Wittes, editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institute. According to Wittes:

On the over-inclusive side, it will keep tens of thousands of innocent refugees who have been subject to unspeakable violence outside of the protection of the United States on the vanishingly small chance that these people might be terrorists—indeed, to make it impossible for themeven to applyfor refugee admission if they are Syrian. It will prevent untold numbers of people about whom there is no whiff of suspicion from coming here as students, as professionals, as tourists. It overtly treats members of a particular religion differently from other people.

On the underinclusive side, the order wouldn’t have blocked the entry of many of the people responsible for the worst recent terrorist attacks. There is, in fact, simply no rational relationship between cutting off visits from the particular countries that Trump targets (Muslim countries that don’t happen to be close U.S. allies) and any expected counterterrorism goods. The 9/11 hijackers, after all, didn’t come from Somalia or Syria or Iran; they came from Saudi Arabia and Egypt and a few other countries not affected by the order. Of the San Bernardino attackers (both of Pakistani origin, one a U.S. citizen and the other a lawful permanent resident), the Orlando shooter (a U.S. citizen whose parents were born in Afghanistan), and the Boston marathon bombers (one a naturalized U.S. citizen, one a green card holder who arrived in Massachusetts from Kyrgyzstan), none came from countries listed in the order. One might argue, I suppose, that the document is tied to current threats. But come now, how could Pakistannotbe on a list guided by current threat perception?

Judge Gorsuch may also be questioned about how to assess the unintended consequences of executive power. President Trump has repeatedly made clear that the Order is not a Muslim ban and that he has no animus against a particular religious group. But the order itself may belie that assertion. Section 5(b) provides:

"Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality."

On its face, the Order specifically creates a preference for minority religious groups. As this applies to the countries subjected to the Order, that means that non-Muslims will be prioritized over Muslims. Moreover, on the day he sign the Order, President Trump gave an interview on the Christian Broadcast Network whereby he hinted at his plan to prioritize non-Muslims in majority Muslim countries.

Any attempt to favor one religion over another, without any evidence of disparities with regards to the amount of persecution against religious groups, make the level of inclusiveness issues more salient. These shortcomings (and President Trump's own statements) could allow one to argue that that the national security issues justifying the Order are merely pretext for religious discrimination. This would run afoul of the First Amendment Establishment Clause. The First Amendmentdirectly applies to all branches of the federal government. It should also be noted that freedom of religious belief is a fundamental right that is analyzed using the most exacting scrutiny: strict scrutiny.

If a court is convinced that the Establishment Clause is implicated, then on that same basis there may also be violations of the Equal Protection Clause. The Equal Protection Clause is contained in the Fourteenth Amendment, which applies against the states. However, the clause has been interpreted to apply against the federal government via the Fifth Amendment Due Process Clause. Judge Gorsuch will likely be asked about the scope of executive power, specifically whether the scope of executive power allows the President to engage inreligious discrimination where there is no evidence of disparities with regards to religious persecution.

Take Care Clause

On November 20 and 21, 2014, President Barack Obama announced a series of administrative reforms of immigration policy that would have provided as many as 5 million immigrants with temporary relief from deportation. Within days of the announcement, representatives of 26 states filed a lawsuit in federal court alleging that the executive actions violated the Take Care Clause contained in Article 2, section 3 of the U.S. Constitution. Specifically, the states argued that the President allegedly changed the law rather than “tak[ing] care that the laws be faithfully executed.”

A federal district court enjoined implementation of President Obama's executive action. That ruling was upheld after a hearing before the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit's ruling was essentially upheld when the eight members of the U.S. Supreme Court split 4-4 on the issue.

A curious question for Judge Gorsuch is the methodology for determining when theexecutive branchhas changed the law rather than “tak[ing] care that the [current] laws be faithfully executed.” According to Bill Hing, professor and director of the Immigration and Deportation Clinic at the University of San Francisco School of Law, the implementation of the order ran afoul of the Immigration and Nationality Act.

“That law, Hing said, protects people if they have gone through the full vetting process and have received a visa or green card. Hing said getting either one involves a lengthy process that includes verification of a person’s identity, reasons for coming to the United States and lack of criminal history. . . . Under the Immigration and Nationality Act, if you’ve been screened already, and you present a valid visa, you should be able to get in. And if there is any challenge, you have the right to an appearance in front of an immigration judge. That’s not [just] a right under the constitution. It’s in the law itself."

President Trump's failure to first explain the insufficiency of current vetting procedures could become even important as it relates to this issue. Thus Judge Gorsuch may be asked about scope of executive power to unilaterallychange the statutory status for legal permanent residents and other visa holders when there is no specific information to support that change in status.

FederalismBetween State and Federal Governments

One less reported aspect of the Order is President Trump's expressed desire to broaden the nonexistent powers that state and local jurisdictionshave over immigration and refugee resettlement. Section 5(g) of the Order provides:

"It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement."

The Court’s opinion in Arizona v. United States, 132 S. Ct. 2492 (2012) makes clear that only the U.S. Government has power over immigration and the status of aliens. This authority rests, in part, on the federal government’s express grant of constitutional power in Article I, section 8, clause 4 to establish an[sic] uniform Rule of Naturalization and the inherent power of the federal government to control and conduct relations with foreign nations. United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 318 (1936).

It has long been held that foreign countries concerned about the status, safety, and security of their nationals must be able to confer and communicate on this subject with the national sovereign, not fifty separate states. Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1876). John Jay, one ofour Founders, observed in Federalist No. 3 that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of apparent interest or injury” might take action that would undermine foreign relations.

President Trump's order does not explain how state and local jurisdictions can have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdiction. Moreover once a refugee is settled in the U.S., then presumably that person has the fundamental constitutional right to domestic travel between states, counties, and cities under the 14th Amendment Privileges and Immunities Clause and Article I, section 2's Privileges and Immunities Clause. President Trump's order does not explain whether and howits newpartnership with the stateswould affect those rights.

Judge Gorsuch could be asked to explain the scope of executive power to infringe on constitutional fundamental right to domestic travel between the states. The answer to this question may provoke conversation about the scope of executive power to delegate constitutional authority of power from Congress and the executive branch of the federal governmentto state and local jurisdictions. Judge Gorsuch may also be asked to explain the methodology for determining these issues.

Shaakirrah R. Sandersis an associate professor at theUniversity of Idaho College of Law. She teaches subjects related to government structure and individual rights under the United States Constitution. You can find some of hermedia on the litigation surrounding federal executive power over immigrationhere, here, here, and here.