Part One of this series established that the Constitution does not expressly dictate who has power over immigration. Moreover, the Court has consistently found that the Federal Government (Congress and the President) has plenary power in this field due to its unenumerated but inherent power of sovereignty. The Court has applied this doctrine to subject any state action toward immigrants to strict scrutiny, a far broader level of review than the rational basis review applied to federal action. Finally, Part One described how the Court used this doctrine to invalidate a state immigration statute, concluding that state action was preempted because of the level of control that the Federal Government operates over foreign policy and immigration.
Now, Part Two will explore some of the strategies that Trump’s opponents have used to resist his immigration policies from outside the Federal Government and discuss the likelihood of their success (or the reason for their failure).
The Legal Challenge to Trump’s Travel Ban
One of the earliest methods used to resist Trump’s immigration policies was a lawsuit directed toward what he had once referred to as a “Muslim Ban.” Spearheading this litigation, the State of Hawaii argued that Proclamation Number 9645 was unconstitutional because it separated people by religion and thus, violated the Establishment Clause of the First Amendment. This argument centered on the past statements of President Trump, including but not limited to: “Islam hates us,” We’re having problems with the Muslims,” and “[needing a] total and complete shutdown of Muslims entering the United States.”
Trump’s opponents argued that these statements dictated strict scrutiny of the Travel Ban. Furthermore they argued that the government’s pivot away from calling it a Muslim Ban, the inclusion of North Korea and Venezuela among the Ban’s eight nations, and the construction of an arbitrary waiver system represented an attempt to constitutionally dress-up a proxy for severely restricting Muslim immigration.
While the Court agreed that Trump’s statements should be considered, it announced that it must balance these statements with the authority of Trump’s office. Remarkably, the Court next completely undermined the relevance of Trump’s statements when it announced that rational basis review continues to apply. Ultimately, “so long as the policy can reasonably be understood to result from a justification independent of unconstitutional grounds,” the policy will be upheld. Here, the Court agreed that there was a legitimate national security justification, thereby upholding the viability of the Proclamation.
This decision dealt a tremendous blow to Trump’s opponents because it effectively strengthened the President’s control over immigration policy. By shrugging off the animus present in Trump’s statements and refusing to apply a heightened level of scrutiny to the alleged Establishment Clause violation, the Court weakened the Constitutional restraints on the President. These restraints could have provided Trump’s opponents a weapon for resistance. Now, Trump’s potential exclusionary policies are almost guaranteed to be upheld because the Court has set a threshold so low that it ceases to function as one. A single dressed-up justification is all Trump needs to hide behind months of public animus.
Even though this case does not apply to the rights of immigrants already present in the U.S., there is uncertainty regarding how this precedent will be applied in future cases. Opponents should at least be concerned that Trump v. Hawaii weakens their likelihood of success in challenging Trump in court over a violation of immigrants’ rights.
State Legislation and Policy
In the wake of Trump’s crackdown on immigration, opponents have turned to state policymakers to aid in the resistance. As discussed in Part One, using the states as a legislative vehicle to resist federal immigration policyis not new. However, Trump’s opponents must navigate this strategy in a way that avoids the preemption pitfalls that invalidated the Arizona legislation in 2012.
While several states have taken initiative, California, referred to by some as “the resistance state,” has led the charge in opposing Trump on immigration. An integral part of California’s resistance is found in a trio of “sanctuary state” laws. These three laws seek to protect immigrants from federal authorities: “Senate Bill 54, Assembly Bill 103, and Assembly Bill 450…restrict California law enforcement officials from cooperating on federal immigration actions, limit the ability of local jails to contract with the federal government to house immigrant detainees, and require employers to ask for a warrant before allowing immigration authorities to conduct a workplace raid.”
These statutes, enacted in the most populated state of the union, represent a major obstacle to Trump’s immigration policy. While California argues that these laws are constitutional, the Trump administration disagrees. Attorney General JeffSessionssued the state, arguing that its policies violate the Supremacy Clause of the Constitution—the same Clause used to invalidate Arizona’s legislation.
Thus, conservatives and liberals have engaged in a gravity-defying gymnastic exercise that allows them to swap legal rationales. Now, progressive California is arguing that the 10th Amendment provides leeway to the states, and the conservative, Federal Government is arguing that state action on immigration is preempted by federal plenary power and the corresponding federal regulations.
Bolstering Session’s argument is Section 1373 of the Immigration and Nationality Act. It states: “…a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Unfortunately, Section 1373, in conjunction with the previously successful preemption argument, presents a formidable barrier to Trump’s opponents. California is attempting to argue that this provision must be construed narrowly and that California’s statute remains in compliance. However, given the recent decisions of Trump v. Hawaii and Arizona v. United States this will be a tough obstacle to overcome. Both cases strengthened federal control over immigration, and there is scant evidence to believe that the Court will reverse course. While the Northern District of Illinois held Section 1373 to be a violation of the 10th Amendment in City of Chicago v. Sessions, Trump’s opponents should not dismiss the likelihood that the Supreme Court will uphold it.
This two part blog represents a surface-level discussion about the Court’s entrenchment of immigration power with the Federal Government. I believe that this entrenchment presents a serious challenge for those who wish to fight Trump’s immigration policies via the courts—especially after the ruling in Trump v. Hawaii. Moreover, Trump’s opponents would be naïve to discount the lethal precedential combination of plenary federal power and preemption. In conclusion, the Resistance should utilize the judiciary, not to defeat Trump, but to slow down the implementation of his policies. This would allow them to “buy time” to win the real battle—the 2018 and 2020 elections. Ultimately, because the Federal Government has control over immigration policy, Trump’s opponents will need to control the Federal Government in order to win this fight.