Using courts to stop immigration measures: Pandora’s box is open

People who opposed Donald Trump’s immigration enforcement measures are about to learn the meaning of the idiom, “what goes around comes around.”

Trump opponents were able to prevent or delay the implementation of his enforcement measures by seeking injunctions from liberal federal judges who shared their negative opinion of Trump. For instance, when Trump issued Executive Order 13780 to establish a travel ban for countries that were refusing to provide information needed to screen and vet their nationals who wanted to come to the United States, Trump’s opponents sought an injunction to prevent the order from being implemented. They claimed that Trump didn’t have the authority to establish such a travel ban and that it violated the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.

In a decision issued nine days after Trump signed Executive Order 13780, a federal judge for the district of Hawaii acknowledged that Trump’s order did not say anything about religion:

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”

But on the basis of the statements Trump made about a Muslim ban when he was campaigning for the presidency, the judge went on to find that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”

Therefore, the judge issued the Temporary Restraining Order.

According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason — which in this case, is the national security interest in stricter vetting — when a president exercises his immigration authority.

The Supreme Court, in a decision issued on June 26, 2018, rejected the religious discrimination argument at the heart of the Hawaii judge’s restraining order, finding that the travel ban was expressly premised on facially legitimate purposes and said nothing about religion.

The Supreme Court concluded that it was a lawful exercise of the broad discretion congress granted to presidents under section §1182(f) of the Immigration and Nationality Act (INA) to suspend the entry of aliens into the United States.

Apparently, President Joseph Biden disagrees. On Jan. 20, 2021, he issued a proclamation that terminated Trump’s “discriminatory” travel ban.

But for 15 months, Trump opponents — with the help of like-minded judges — stymied Trump’s policy.

What goes around comes around

The genie is out of the bottle. The Democrats demonstrated the effectiveness of court challenges to Trump’s immigration measures. Now the Republicans are going to use the courts to challenge Biden’s immigration measures. In fact, this has already started. 

On Jan. 20, 2021, the Biden administration issued a memorandum to the DHS enforcement branches, which, among other things, orders a 100-day pause on deportations, with the following exceptions:

1. Deportable aliens who have engaged in or are suspected of terrorism or espionage, or otherwise pose a danger to the national security of the United States; or
2. Who were not physically present in the United States before Nov. 1, 2020; or
3. Who have agreed to waive any rights they may have to remain in the United States; or
4. For whom ICE has made an individualized determination that removal is required by law.

The Republicans responded by going to a federal district court in Texas and requesting an emergency Temporary Restraining Order to delay the implementation of the memorandum.

In a decision dated Jan. 26, 2021, the Texas judge granted the restraining order, finding that the memorandum violated Section 1231(a)(1)(A) of the INA, which states that, “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days….”

The judge also found that the memorandum was arbitrary and capricious because it failed “to consider potential policies more limited in scope and time” and failed “to provide any concrete, reasonable justification for a 100-day pause on deportations.”

This is just the beginning 

It won’t be difficult for the Republicans to find conservative judges who will issue injunctions to block Biden’s liberal immigration measures. Trump appointed 226 presumably conservative judges to the federal bench, including 54 appellate judges. These are lifetime appointments except under very limited circumstances.

Trump also appointed three conservative Supreme Court justices, all of whom are 55 years of age or younger, giving the Court a 6 to 3 conservative majority. A Pew Research Center analysis in 2017 found that justices who were appointed when they were 55 or younger have served for an average of nearly two decades.

According to Noah Feldman, a constitutional law professor at Harvard’s law school, a constitutional crisis exists when we face a situation in which the constitution does not provide a clear, definitive answer to a basic problem of governance and the political actors whose conflict is creating the problem appear ready to press their competing courses of action to the limit.

It is too soon to be sure, but we appear to be headed in that direction with the political use of the federal courts to impede the president’s ability to implement immigration measures — which could lead to obstruction of executive branch powers in other areas as well.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.