Thursday, February 02, 2017

Oppose the President’s Refugee Order? Don’t Leave its Repeal Up to the Courts

Deborah Pearlstein

The President’s sweeping order last week suspending entry of millions of foreign nationals and refugees into the country sparked outrage from Democrats and Republicans alike.  In the chaotic first days of its implementation, lawyers and courts were on the front lines in mitigating some of the worst of its effects.  Yet while it is clear the President’s order raises a host of deep questions about its legality, it is far from clear any one of them is a certain win for challengers. 

Start with the basic legal question where the President gets the power to issue an order like this. It turns out to have a straightforward answer: Congress gave him the power in a law passed well before this administration, broadly authorizing the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” whenever he finds their entry “would be detrimental to the interests of the United States.” (8 U.S.C. § 1182(f)) It is true that another law provides that no person may be discriminated against in the issuance of a visa on the basis of their “nationality, place of birth, or place of residence.” (8 U.S.C.§ 1152) There is a compelling argument that a court should read this anti-discrimination rule to limit the scope of the President’s power to suspend entries.  But there are also arguments government lawyers will try to leverage against such a reading – like the argument that there is a difference between awarding visas and suspending entrance. And different judges read statutes differently.

The arguments that the order violates one or another provision of the Constitution – the Due Process Clause, the Establishment Clause, or the Equal Protection Clause – likewise face serious hurdles.  While green card holders are certainly entitled to significant constitutional protection, the government has apparently pulled back from its earlier insistence that the order applies to that group of lawful U.S. residents.  All other non-citizens at the borders – especially those with no previous connection to the United States – must confront the Supreme Court’s 60-year-old understanding that because the power to exclude aliens is a “fundamental sovereign attribute exercised by the government’s political departments,” it is “largely immune from judicial control.” It was on this basis that the Court held in the 1953 case Shaughnessy v. United States ex rel. Mezei that non-citizens at the border were not protected by ordinary principles of due process.  Indeed, while non-citizens inside the United States are generally protected by the Constitution, non-citizens outside the United States traditionally are not. 

Here too, there are strong arguments that this old constitutional rule cannot be squared with either basic fairness or contemporary constitutional reality. The Court held in 2008’s Boumediene v. Bush that non-citizens detained by the United States in Guantanamo Bay, Cuba, had a constitutional right under the Suspension Clause to seek a writ of habeas corpus in U.S. courts. It would be a perverse constitution indeed that gave non-citizens detained in Cuba more procedural rights than non-citizens detained at JFK airport.  But the question remains entirely unsettled.

Even assuming all who are subject to the President’s order were entitled to full constitutional protection, their ability to succeed on the merits of their claims is far from clear.  While there is no doubt the Equal Protection Clause applies to the federal government (through the Fifth Amendment), and while it plainly prohibits laws that discriminate on the basis of race or gender (or certain other classifications to various degrees), the Court has not traditionally relied on the Clause to bar discrimination on the basis of religion.  Claims about religious discrimination are instead usually brought under the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion.”  This claim is strong indeed.  The President’s order bans immigration from seven Muslim-majority countries, while at the same time establishing preferential treatment for refugees seeking asylum who are identified with “minority religions” in their country of origin.  Most damning, the President himself has said that the order was intended to give priority to Christians seeking asylum over Muslims. Such discrimination runs afoul of everything the framers of the Constitution were trying to accomplish in building a nation that not only respected but defended religious freedom and diversity.  If one could overcome the problem of constitutional protection for non-citizens, this argument should prevail in court.  It should.  But it may not.  The country has never seen an order quite like this before.  There is thus no foolproof precedent requiring that it be overturned.

There is, however, one foolproof way to ensure the President’s order in its current form does not stand.  And it lies with the body that gave the President the authority to issue it in the first place.  A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect.  And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here.  At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

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