The Supreme Court just released its most anticipated decision this term. It touched on the scope of authority held by the president, Congress and federal courts. While the dissenting justices looked to the founding fathers and the American experience to articulate a resolution consistent with those traditions, the majority opinion does not.
When the American Revolution gave birth to a new country vulnerable to foreign powers, the founding fathers empowered Congress with authority over immigration in Article 1 of the Constitution. Over time, Congress established key principles for immigration law: distinguishing between individuals and foreign regimes, removing barriers based on national origin or religion and authorizing the executive branch to establish policy within these parameters.
{mosads}Presidents throughout modern history stayed true to these principles, which put the focus on the individual seeking entry, not the government of her country of origin. Indeed, the U.S. encouraged immigration from the former Soviet Union as a key tool in its fight against communism.
The experience of Iranian Americans illustrates the importance of making determinations based on the merits of the individual. As we brought out in Pars Equality Center et al v. Trump et al — a case challenging the travel ban in Washington, D.C. federal court, individuals seeking to leave Iran have long received elaborate vetting and contributed to every aspect of American society – from medicine, science, technology, to entrepreneurship and public service.
Many have valiantly opposed the oppressive Iranian regime and been forced to flee as a result. The travel ban upends the lives of Iranian Americans and seeks to diminish their contributions to this country. One Iranian American U.S. Navy veteran faced the prospect of not being able to unite with his Iranian fiancée. An entrepreneur who started her own company in Silicon Valley will be unable to have her mother visit and support her as she grows her business. Others came to the U.S. to study and contribute to scientific and technological developments, only to be forced to leave due to the complications posed by the ban.
There is wisdom in the American tradition of making determinations based on the merits of the individual, not the foreign government. Iranian Americans contribute mightily to create jobs and innovations in America even though the U.S. has been at odds with the government of Iran for 40 years.
At the Supreme Court in April and in their dissenting opinions today, Justices Stephen Breyer and Sonia Sotomayor honed in on the importance of case-by-case waivers. Referring to the amicus brief from the Pars Equality legal team, Breyer asked a series of questions aimed at determining whether the waiver “system” created by the travel ban was bona fide or mere “window dressing.” Breyer asked about data in the amicus brief, which had been made public after Republican Sen. Jeff Flake (R-Ariz.) and Democratic Sen. Chris Van Hollen (D-Md.) demanded it from the State Department.
The data cited in the brief showed that, from the ban’s implementation to February 15, waivers had been granted in only two instances out of hundreds of thousands of applicants — far short of even one percent. Justice Sotomayor queried the solicitor general, “what are you personally doing to represent to us that it is, in fact, a real waiver process?” In his dissenting opinion, Breyer makes clear that the waiver system is crucial to the travel ban’s legality: “How could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? . . . denying visas to Muslims who meet the proclamations own security terms would support the view that the Government excludes them for reasons based upon their religion.”
In fact, as Breyer writes, “no guidance has issued” to explain how an individual can satisfy the nebulous requirements for waiver eligibility, such as “undue hardship,” and “in the national interest.” Under this vague rubric, immigration lawyers and visa applicants alike are left in the dark. How can a grandmother prove that her trip to meet a newborn grandchild is “in the national interest?” How does a fiancé who cannot join his betrothed quantify the “undue hardship” suffered?
As a result, the Trump travel ban crosses the line and contravenes the parameters that Congress established more than 50 years ago, and the authority given Congress by the Founding Fathers 220 years ago.
President Trump’s waiver “system” is a mere illusion. What is not an illusion is the American tradition of focusing on individual applicants, not adversarial regimes, for decisions on immigration. To paraphrase Dr. Martin Luther King, it is best to judge prospective immigrants based on their character, not their nationality and the flaws of foreign governments. That’s the American tradition, and dissenting justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg got it right.
Cyrus Mehri and Joanna Wasik are civil rights lawyers in Washington, D.C. who represent the plaintiffs in Pars Equality Center et. al. v. Trump et. al.