Daily Dispatch 11/5/2019: Courts will decide major immigration cases

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Daily Dispatch

November 5, 2019


President Trump has used his executive authority to make some substantial changes to immigration policy – or at least he has tried. When we take stock of all the things he has done, however, it is actually amazing how much has been blocked or moderated by Federal Courts – at least at the district level. If Congress was doing its job, we’d actually be witnessing something like a functioning system of “checks and balances” – which is supposedly the major constitutional innovation of this country’s founding. As the administration continues to step in the way of meaningful oversight, and Congress largely lets this happen (oh party loyalties are much stronger than constitutional obligations), the courts are, for the time being, the only thing holding back a logjam of very bad ideas generated by this administration. 

The big test, however, is coming. Many of these blocked rule changes, executive over-reaches, and seemingly clear violations of existing federal law will be coming before the Supreme Court in the next few months. The Supreme Court is not simply a partisan tail wagging the policy dog, but it is not exactly neutral either, and is clearly leaning toward the Trump camp. So, we are ALL nervous about what the next few months will mean for immigration policy, and executive powers more generally, and, well, the future of this country.

In light of this, Forbes’ Stuart Anderson has a great review of “All the President’s Lawsuits” today that is worth spending some time with. A few examples:

Using the President’s 212(f) Authority to Limit Immigration: Congress has not supported the Trump administration’s efforts to eliminate family immigration categories and reduce legal immigration. As a result, Donald Trump and his chief immigration adviser Stephen Miller have turned to executive branch authorities.

The boldest of these measures is an October 4, 2019, presidential proclamation using Section 212(f) of the Immigration and Nationality Act to bar new immigrants from entering the United States without health insurance, potentially reducing legal immigration by hundreds of thousands of people per year. For context, note the Supreme Court permitted the administration to use 212(f) authority in the travel ban decision.

A Federal Court in Oregon issued a temporary injunction on this new health rule over the weekend (we reported yesterday). However, the bigger issue of the president using “212(f)” authority to expand authority to block legal immigration, essentially circumventing congressional rule-making, will likely end up in the Supreme Court. The travel ban decision, as Anderson notes, allowed the president to use this authority – however, the travel ban that came before the Court in that ruling was a third effort, still seriously flawed and doing much harm to families impacted, but restricted somewhat by earlier decisions. 

Using the Public Charge Regulation to Limit Legal Immigration: Like the health insurance requirement on new immigrants, the public charge rule could significantly reduce legal immigration. The rule was “an obsession” for Stephen Miller, according to the book Border Wars: Inside Trump’s Assault on Immigration by New York Times’ journalists Julie Hirschfeld Davis and Michael D. Shear.

On August 14, 2019, the Department of Homeland Security (DHS) published its final rule on Inadmissibility on Public Charge Grounds. “Judges before U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, Northern District of Illinois, and District of Maryland have ordered that DHS cannot implement and enforce the final rule on the public charge ground of inadmissibility,” stated U.S. Citizenship and Immigration Services (USCIS).

On October 11, 2019, in a ruling in a lawsuit brought by New York Attorney General Letitia James, U.S. District Judge George Daniels issued a nationwide injunction against the public charge rule.

The big, big case coming before the Supreme Court next week is the future of Deferred Action for Childhood Arrivals, an Obama era program intended to protect people brought into this country as children from removal proceedings, providing they have a clean criminal record and complete school. Congress has repeatedly failed to pass legislation making the program permanent and providing a path to permanent residency and citizenship. The House passed the Dream and Promise Act this summer, for example, but it is stalled in the Senate where no one expects any action at all. So, the Supreme Court will decide. From Anderson’s article,

DACA: On September 5, 2017, then-Attorney General Jeff Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program. Created during the Obama administration, DACA granted work authorization and administrative relief from deportation for up to 800,000 individuals who came to America before the age of 16, completed high school or were in school, and passed background checks.

The Supreme Court will hear a challenge to the Trump administration’s DACA action on November 12, 2019. “The justices will consider three consolidated cases – filed in California, the District of Columbia and New York,” writes Amy Howe for SCOTUSblog. “The challengers in all three cases argued that the termination of the program violated the Administrative Procedure Act, which is the federal law governing administrative agencies, as well as the rights of DACA recipients, and the lower courts ordered the government to keep DACA in place.”

[United We Dream and others are organizing actions for the November 12. There will be a major mobilization in D.C. including presence at the Court and congressional lobbying. Check out Home is Here for more information.]

There is further information on Temporary Protected Status which is before the courts (the termination for Haiti, Nicaragua and El Salvador remains blocked by courts until January 2021); Trump’s many asylum orders (this will be a separate Dispatch); and various rulings broadly under the contours of Federalism and the balance of power between the Federal government, states and localities. Read the full article here.

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