A Crazy Quiz on Immigration Law: What is a “White Person”?

In 1790, the Naturalization Act created citizenship for “free white persons” born outside the U.S. Questions arose over the meaning of this seemingly clear term. So, let’s play our Crazy Quiz of Immigration Race Law:

True or false:

1.     The Director of Naturalization told clerks and customs officers to use the “average man in the street” test to determine whether a petitioner was white, rejecting scientific evidence from ethnologists.

2.     A Hindu man had been naturalized as a white person based of ethnological evidence that Caucasians were genetically linked to central Asians (hence, “Asian” in Caucasian), but after a Supreme Court ruling rejected this interpretation of race the man’s citizenship was revoked.

3.     Arabs were considered neither Black nor Asian and thus defaulted to Caucasian. Later, immigration authorities decided that Arabs were not white and could not become citizens.

4.     A woman born of Scandinavian descent married a man of Japanese descent and as a result became Japanese by marriage, thereby losing her citizenship—even though she was born in the U.S.

5.     Italians were grouped by immigration officials as “Italian (north)” and “Italian (south).”

6.     Jews were listed as a separate race, designated as Hebrews.

7.     An attorney who represented a variety of Middle Easterners complained to immigration authorities that Jesus of Nazareth would have been denied citizenship on grounds that he was not a white person by law. He lost the argument.

8.     World War II propaganda warfare against Japan and Germany was a clear factor in leading lawmakers to introduce bills to remove racial criteria for citizenship. America felt some degree of shame for its long history of tying citizenship to whiteness.

Answers are below…..

           

All of these statements are true. For elaboration, read Marian L. Smith, Race, Nationality, and Reality, Parts 1, 2 & 3 here:

https://www.archives.gov/publications/prologue/2002/summer/immigration-law-1.html

https://www.archives.gov/publications/prologue/2002/summer/immigration-law-2.html

https://www.archives.gov/publications/prologue/2002/summer/immigration-law-3.html

Can President Trump Strip Citizenship? Yes and No

All presidents, using the immigration agencies under their control, are legally able to strip people of citizenship.

This concept applies to naturalized citizens: People born in another nation who have undergone a lengthy and rigorous legal process to become a citizen. This happens only rarely: to people who falsify immigration documents, or participate as members in subversive or terror groups, or have a dishonorable discharge.

But at no time has a birthright citizen had his or her citizenship stripped. President Trump appears to be interested in making that happen.

Who could lose their citizenship?

That’s a disturbing question—and it’s wide open.

A narrow order would strip citizenship to people born within nine months of their mother’s illegal entry to the U.S.

A broader order would apply to 700,000 registered DACA recipients and more than one million unregistered DACA recipients, many of whom are now in their 20s. Recall, their parents brought them to the U.S. unlawfully when they were children. Under birthright citizenship, their children are automatically U.S. citizens. Given the president’s recent efforts to strip DACA recipients of legal protection from deportation, it is reasonable to assume that his order would target their children as people to lose citizenship.

President Trump might have an even broader concept in mind. Roughly three million people work in the U.S. on visas. Some workers have children who are born in the U.S. (typically, H-1B visa holders who work in the U.S. for many years). Those children are citizens. But the president might seek to draw an order that strips them of citizenship.

What are the consequences of losing citizenship? A person cannot vote in federal and most local elections unless they are a citizen.

But the bigger consequence is deportation. The question for many people who are born in the U.S. and stripped of citizenship by this new order would be: Deported to where?

Consider DACA recipients, now in their 20s or early 30s who came to the U.S. as young children from Mexico, Honduras, Nicaraugua, El Salvador and other nations. The children of DACA recipients have no legal connection to these nations, who would regard these children as aliens with no rights of admission.

What then? We had a situation with an alien who was naturalized (not a birthright citizen), accused of Communist sympathies, stripped of his citizenship, and deported— but no nation would allow him entry, so he was returned to Ellis Island, where he resided indefinitely. A justice in that case wrote (Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)):

“Because [Mr. Mezei] has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law?”

Could the House Sue President Trump Over Immigration? Yes. It’s Happened Before.

President Trump’s idea to revoke birthright citizenship amounts to a one-man repeal of part of the U.S. Constitution. It bypasses the legislative process, which requires passage of a bill in both chambers and a president’s signature. It violates the process for amending the Constitution. It sets a unique precedent for a president using an executive order to overrule the Supreme Court.

The idea is so unconstitutional that Speaker Paul Ryan said exactly that today. But the Speaker is a total irrelevancy in the Trump world.

If such an executive order materializes, could the next House of Representatives (or Senate) actually sue the president to stop him from enforcing his order?

Yes. It has happened. And my constitutional law professor, Gene Gressman, was Special Counsel to the House of Representatives when the matter was argued before the U.S. Supreme Court in 1983.

The case involved an international student, Jagdish Chadha (pictured above). He was born in Kenya when Kenya was a British possession. His parents were born in India.

When Kenya became independent, the new nation did not recognize him as a citizen. They told him he was a British citizen.
Britain passed a law (Immigration Act of 1971) to strip former Kenyan-born British citizens of their British citizenship.

India did not recognize him as a citizen. 

The U.S. did not recognize him as a citizen. 

Jagdish Chadha was a man without a state.

The executive branch set into motion Chadha’s deportation after his student visa expired. The immigration authorities, after receiving requests from Chadha’s lawyers, made a discretionary decision to give Chadha a reprieve. By law, the reprieve had to be reported to Congress.

Congress vetoed the reprieve. They didn’t want to give Chadha special treatment when many other people were in similar circumstances. The INS (today’s version of ICE and USCIS) ignored Congress. 

The House of Representatives exercised what is called a legislative veto. They sued to enforce this power—and with my constitutional law professor at the helm, the House lost its case in a landmark case (Chadha v. INS). Chadha (pictured above ) was granted permanent residence and began a citizen.

As students during the time of this litigation, we asked Prof. Gressman why he took a case that would have deported a stateless man. He said he was thrilled at a personal level that Mr. Chadha got to stay in the U.S. 

But he said that “presidents are not kings,” or words to that effect. His point was to defend the House of Representatives when it passes a resolution to invalidate a unilateral immigration decision.

As I recall the intense talk around the Chadha case, we expressed profound disappointment with our beloved professor. 

We sided with Mr. Chadha. 

Prof. Gressman foresaw the day when a president would take on a larger issue and act like a king, against the express wishes of elected lawmakers in Congress.

We had that talk in 1985. Today, I appreciate Prof. Gressman’s larger point. The stopping point of presidential power in immigration was eroded when Mr. Chadha won his case.

Trump's Order on Birthright Citizenship: Regulating Immigrant Wombs

The 14^th Amendment states: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In 1898, the Supreme Court ruled on what this means: All persons—everyone, without distinction or qualification— who is born in the U.S. is a citizen.

Now, President Trump wants to use an executive order to overturn a Supreme Court precedent that has been in effect for 120 years.

No Supreme Court ruling has been overturned by an executive order. Nor has any amendment been overturned by an executive order.

Emboldened by his 5-4 win in Trump v. Hawaii (the administration’s third version of the Muslim ban), Trump appears to believe he has five votes in his pocket on this issue.

But let’s take a closer look at what his order means. It means that the wombs of immigrant women carry children who are unworthy of U.S. citizenship.

The Supreme Court in 1898 reviewed the meaning of the text of the 14^th Amendment by examining congressional intent. Here is what the Court and senators said (quoting in red text from 1898 decision with sub-quotes from 1868 Senate debate):

“During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’

Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?’

Mr. Trumbull answered, ‘Undoubtedly;’ and asked, ‘Is not the child born in this country of German parents a citizen?’ Mr. Cowan replied, ‘The children of German parents are citizens; but Germans are not Chinese.’

Mr. Trumbull rejoined, ‘The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.’”

Wong Kim Ark— born in the U.S. to a Chinese mother and a Chinese father, neither of whom were citizens— was denied re-entry upon returning from a visit to China. 

Why? 

Because the Congress enacted a law to exclude Chinese aliens and also to tear up the return certificates (passports) of their U.S. born children.

How is this “womb politics”? 

Lawmakers in the 1870s through 1910s viewed the Chinese as an inferior race. Chinese women were legally treated as immoral (Google the Page Act of 1875 and see for yourself). Rep. Page did not fear immorality, or else his legislation would have regulated promiscuity without regard to the Chinese. 
His bill intended to prevent Chinese women from giving birth on U.S. soil. He understood that the 14th Amendment meant that a person born to a Chinese mother on U.S. soil was a citizen, so he successfully passed a law that restricted Chinese immigration in Hong Kong and other ports that were departure points for Chinese women heading to America. 

Congress believed that every newly born child in the U.S. was a citizen, without distinction. These babies were created as equals; and their mothers, including their reproductive capabilities, were also viewed as equals without constitutional distinction.

Witch Izzit In Your Workplace? Free Speech, Cultural Boundaries— or Something Else?

Playing a witch today was fun but more complicated than last year—and far more complicated than my custom in the past to wear a pumpkin outfit.

Does your workplace have a speech code, or at least guidelines that mark off a boundary for out-of-bounds topics—say, jokes about race or sex?

Does your workplace have some ideas about diversity and inclusion—say, groups for working moms, LGBTQ support, and similar?

Playing a witch surfaced these issues for me.

Academia is a place for free speech. But there are implicit boundaries, beginning with the basic idea that no one—especially an instructor— should make a student feel uncomfortable because of their race, gender, ethnicity, national origin, or other personal attribute.

The gender issue was a concern for me as I played Witch Izzit. The idea was to provide a visual representation of a non-conforming male precisely because my students will manage some males who wear make-up or otherwise express feminine traits. We have had a case on that very topic.

Why not use the innocent pretext of Halloween to provide an experience in observing and interacting with a male dressed as a (very unattractive) female witch?

But I recognized potential pitfalls. Would I be perceived to be mocking a transgender person?

Would this seem like a PC experiment run amok?

If I wore breasts or makeup, would I be crossing a boundary? (I concluded yes, and came as a poorly disguised male.)

For people who equate Halloween with religious connotations, would my costume be a problem?

My students were gracious in accepting me-- corny outfit, terrible witch-accent, broken character, trace of stubble, and other imperfections. But I left class with a gut feeling that we raised more issues than we settled. This disquieting reflection is indicative of how polarized we are in our everyday lives.

Targeting White Supremacy in the Workplace

To My Students and Blog Readers:

In light of yesterday’s deadly attack on Jewish worshipers, I am taking a moment to come back to “Targeting White Supremacy in the Workplace” to explain what this research aims to do.

The Ku Klux Klan Act of 1871 had separate criminal and civil law sections. A series of Supreme Court rulings eviscerated the law—a law passed by Congress and signed by President Grant, a law aimed at curbing racial violence directed at blacks and white supporters, a law designed to put order above mob rule, a law designed to ensure that the military had more firepower than a racist mob (the KKK was heavily armed).

The criminal law element was ruled unconstitutional—and now is replaced by the federal hate crime law under which the Pittsburgh killer is charged.

The civil law element has been revived, too, but narrowly. It applies to racially motivated attacks aimed at people who are exercising political rights—for a prime example, see the Charlottesville attacks by the Unite the Right thugs against civil rights protesters. There is a lawsuit along these lines, Sines v. Kessler. It aims to financially cripple Unite the Right groups, their leaders, and their supporters.

My research shows that Congress also intended to ensure that the KKK and related groups did not terrorize blacks into an economic caste system.

This research resurrects legislative hearings and testimony that makes this legislative intent crystal clear.

White supremacy has many tentacles. One is political. Another is religious, both in the form of a perverted Christian worship (Church of the Creator) and a violent suppression of Jews and Muslims. Another is the workplace— intimidating blacks, Jews, Mexicans and other minorities.

And here is the bottom line to my research: to root out hate groups, formally called conspiracies under the Ku Klux Klan Act of 1871.

Robert Bowers will be severely punished. Did he have online co-conspirators? Were there people who pointed out Squirrel Hill as a place where Jews congregated? Did they help to purchase his weapons? Did they help to formulate specific parts of his plan? Did they help him train for his attack? And so on.

My article will not come into play in this case. The matter is criminal. But there are many hundreds of similarly motivated attacks on blacks, Jews, their supporters (who may be white Christians, to illustrate), immigrants, and other minorities. The article provides lawyers a detailed blueprint for holding the people in the shadows—the webmasters, the planners, the enablers, the suppliers— financially liable for the damages they cause with their hate.

The article has been selected for republication in the 2018 edition of the Civil Rights Litigation Handbook. If it helps to shut down one hate group, it will be a success—and not until then.

Let’s remain hopeful for America.

  

Witch Izzit to Replace Witch Hunt as Class Lecturer

My employment law class covers, among many topics, gender stereotyping. On Monday, we will discuss the case of a front-desk hotel clerk who was fired for having an “Ellen DeGeneres” look. The Director of Operations, a woman, wanted the “Midwestern Girl” look, even though the employee’s managers had a very high regard for the fired employee. Another case looks at an employer requirement that women wear lipstick, and other make-up. We also explore a case of a male fire fighter transitioning to female, and ordered to undergo psychological testing.

Last Halloween, I dressed as a witch with lipstick and nail polish. We all had fun with Witch Hunt. The idea was to present a male authority figure in make-up, a learning experience for students and for me.

This year feels a bit different. Megyn Kelly’s blackface comments are far removed from Witch Hunt, but my presentation of self in make-up could be construed as mockery of a transitioning person. Witch Hunt’s name seems a bit provocative, too, considering the intense politics of the week.

So, Witch Hunt is taking this Halloween off. 
Witch Izzit will appear without makeup and with a new hat.

Witch Izzit is a graduate of the Scholastic Academy of Witches, Class of 828. Witch Izzit has written extensively on magic potions and spells cast upon mortal judges and lawmakers. A magical class awaits us.

Mailing NCAA Bracket/Lotto Ticket or Crossing U.S. Border Illegally: Which Carries Greater Penalty?

Under 18 U.S. Code Section 1953, “Interstate Transportation of Wagering Paraphernalia,” it is a crime to mail across state lines your NCAA bracket or lotto ticket. It is punishable for up to five years in prison.

8 U.S. Code Section 1325(a), “improper entry by alien”— quoting from the statute— carries civil fines that range from $50 to $250, and the possibility of a six month jail term (as a misdemeanor offense). That is for first offenders. Repeat offenses are low-level felonies.

From June 2017 - June 2018, Attorney General Jeff Sessions’s agency has prosecuted 4,174 border-crossers as criminals.

Why is U.S. immigration law so lenient? The main answer is that it is very expensive to hold criminal trials and also jail people who cross the border in violation of the law. Also, aliens have constitutional rights; however, using civil law mechanisms, these rights are much less of an obstacle.

There is one more relevant aspect to the developing caravan crisis story. By law, the U.S. military cannot enforce domestic laws. This is a matter for the Attorney General and Secretary of Homeland Secretary, not for Gen. Mattis in his role as Secretary of Defense. 
Military forces that are being sent today to the border are engaging in activities that are similar to responding to a hurricane: they are preparing to house thousands of migrants. They are not preparing for a military engagement.

One sure bet: Don’t mail your lotto ticket or NCAA bracket. And if the rhetoric ever cools over immigration, raise the civil fine to a level that makes crossing unlawfully so expensive that it is a real deterrent.

Blog Post 1,000: Thank You, Readers!

The Customer Is (Not) Always Right: Costco to Pay Female Worker $250,000

A female worker at Costco was fired after taking a lengthy medical leave. Her absence was caused by a male customer who repeatedly harassed her. When she complained to management, she was told to “be friendly” to her harasser. Recently, the Seventh Circuit Court of Appeals upheld a $250,000 verdict against Costco for failing to do more to shield the worker from this customer.

Some details make this more clear. Dawn Suppo worked at the Glenview, Illinois Costco. A customer named Thad Thompson took a great interest in her, calling her “beautiful,” “pretty,” and “exotic.” He repeatedly tried to hug her; he stalked her inside and outside the store. Suppo complained more than once to her managers. They told Thompson to stay away from Suppo but after that they shrugged it off. Eventually, she went to court and received a No-Contact Order against Thompson. When he violated the order, she stopped coming to work. Eventually, Costco fired her.

Costco argued that Suppo subjectively perceived harassment, but her claim was not provable by an objective standard. A jury disagreed. So did a panel of federal judges.

The court offered this explanation:  “Actionable discrimination can take other forms, such as demeaning, ostracizing, or even terrorizing the victim because of her sex.”

The case is here: https://www.manatt.com/Manatt/media/Media/PDF/Newsletters/Employment/Equal-Employment-Opportunity-Commission-v-Costco-Wholesale-Corp.pdf.  

Beware “Number 14” and These Masks: Scary

Two days after President Trump proudly informed supporters in Houston that he is a “nationalist,” the FBI arrested another self-described nationalist, Robert Rundo. Rundo is a member of the ultra-right white supremacy group, RAM (Rise Above Movement).

The group wears masks depicted above (with MAGA hat) and here:

The FBI's criminal complaint (at bottom of post) charges Rundo and others with conspiracy to riot in Charlottesville, Berkeley and other locales. Here are important excerpts from the FBI criminal complaint:

14. … RAM and its members documented their white supremacy extremist ideology in both private and public Internet postings. In a video taken by a RAM associate, later posted online, the associate asked Rundo to say the “14 words.” Based on my training and experience, I know that “14 words” refers to a slogan commonly known and used by white supremacy extremists and neo-Nazis that states: “We must secure the existence of our people and a future for white children.” Rundo responded, “I’m a big supporter of the fourteen, I’ll say that.”

Point 14 does not allege illegal behavior but establishes criminal intent to riot against civil rights protesters with racial motivation.

Points 18-28 allege that RAM conspirators violently attacked civil rights protesters in Huntington Beach, California.

Point 22 alleges an attack against a reporter: “Videos show several rally attendees confronting, pushing, and then punching two journalists from a local news publication. As the journalist stumbled backward, LAUBE grabbed the journalist’s shoulder with his left hand, and punched him three times in the face.”
Points 49-53 set forth allegations that Rundo and others committed racially and religiously motivated violence in Charlottesville on August 12, 2017.

There will be one less frightening mask this Halloween. Rundo is being held in a downtown Los Angeles jail. The judge denied his bail request, calling him a flight risk. True enough: the FBI had to go to Central America to arrest him on Sunday.

For more, see https://int.nyt.com/data/documenthelper/421-robert-rundo-complaint/0f1e76cdeef814133f24/optimized/full.pdf#page=1.

How Sandra Day O'Connor Disabled the ADA: Blinded by Textualism

(Photo Credit: Thomas Dolby, She Blinded Me with Science)

Two women with severe myopia were not considered for a pilot job by United Air Lines. They were pilots, however for United’s regional jet airline. They were merely applying for a better job. Their vision was correctable to 20/20 with glasses. Still, the airline refused to process their application because of their myopia.

In a far-reaching decision, Justice O’Connor (now afflicted with dementia) wrote that the women were not disabled. This is because their vision impairment was correctable to normal with glasses.

Justice John Paul Stevens put this ruling in perspective with a withering dissent:

“The Court’s approach would seem to allow an employer to refuse to hire every person who has epilepsy or diabetes that is controlled by medication, or every person who functions efficiently with a prosthetic limb."

How did Justice O’Connor conclude that people with correctable or controllable disabilities are not disabled? She used textualism: By reading closely the text of the ADA, which says that a person is disabled if he or she has a substantial impairment, she said that Congress used the “present indicative tense.” Thus, if a person wears glasses that corrects bad vision, or takes medication to control epilepsy, or walks with a prosthetic leg, or has normal hearing while using hearing aids, those people presently are not substantially impaired.

The lesson here is the blinding effect of textualism. Congress never debates legislation by pulling out dictionaries and having an interpretation duel between the Oxford English Dictionary and Merriam Online Dictionary. The clear intent of the ADA was to provide legal protection to people who have a substantial physical or mental impairment—and even then, employers are not required to hire them, but simply to consider a reasonable accommodation that would allow them to perform the essential functions of the job.

If the two applicants in the United case were okay to fly passengers from O’Hare to Champaign on a regional jet, why weren’t they okay to fly passengers on a jet from O’Hare to Orlando?

Congress passed a law in 2009 that overruled Justice O’Connor’s decision—and President Barack Obama signed it. This means if you are controlling a substantial impairment by taking medication or using therapy or assisting technology, the law gets you into the interview room with an employer, if you are otherwise qualified. That was—and is— the intent of the ADA, rather than a glorification of sentence diagramming put forth by Justice O’Connor.

Rare Day: UIUC Campus Honors & 4th Grade Class Study Japanese Internment Together

It’s not every day that a college class and fourth grade class have a common homework subject and meet in class together. But that’s what happened today when my class (“Immigration and Race: Inequality in Work”) and my wife’s class met in the Rare Book Room at the University of Illinois Library.

Our librarian retrieved fascinating materials from the UI library stacks and other collections. One show-stopper: Our library has a full folio of newspapers published by inmates at the Manzanar camp.

One student noticed great irony in the title of the newspaper: “Manzanar Free Press.” Click on the full page and think about these headlines: “Workers Line Up to Receive Pay.” Yes, these “workers” were paid pennies on the dollar for their work. “Citizens’ Group in First Meeting.”  Yes, these citizens were incarcerated simply and only because of their race … but they were able to hold a meeting behind barb wires. “Pears, Apples To Be Harvested Soon.” Click on that story and at the end read: “All residents are requested to resist temptation and not pick the fruits.” We learned that the food raised by inmates was sold to outside markets (white people).

The most surprising lesson for me? Military leaders opposed the internment idea! They told politicians that only about 500 Japanese Americans out of 117,000 were considered subversive—the rest were loyal. 
About 90,000 were citizens (the rest had an early version of a green card, meaning lawful resident). Lt. Gen. DeWitt privately expressed outrage that U.S. citizens could be rounded up and relocated simply because of their race. 
Three months later, he was charged with the task of making this happen.

The story made me reflect on the tense exchange last week between Chief of Staff  General John Kelly and National Security Adviser John Bolton. The military leader believes that the Army should not be used to patrol the U.S. border for migrants. Mr. Bolton favors this.

To Caroline Szylowicz (Rare Book Room Librarian), thank you a day that UIUC and Leal 4^th Grade students will not forget. 
The world they are inheriting from my generation is on course to revisit the bigotry, segregation, and racial pride that we had hoped was eradicated 70 years ago. 

To our students, we look to you for new hope, new ideas, courage, and compassion.

Employer Cites Religious Values to Fire Transgender Employee: Lawful?

No, said a recent federal appeals court—but President Trump’s apparent effort to broadly regulate transgender protections out of all federal laws could essentially negate the impact of this ruling. So could the newly formed conservative bloc of the Supreme Court.

In this recently decided case (EEOC v. R.G. & G.R. Funeral Homes), the employer fired Aimee Stephens (pictured) because she was transitioning from male to female. The employer said that employing Ms. Stephens violated his religious view that gender is biologically determined at birth.

The federal Sixth Circuit Court of Appeals sided with the EEOC, finding that Stephens was fired “because of … sex.” The words are in quotes because that’s exactly how Title VII—the statute— reads. The court said that if Stephens remained male, she would have avoided termination.

The most interesting part of the lengthy decision is the court’s treatment of the owner’s religious values. His funeral home was not for Christians only, though it had Jesus prayer cards. The business also conducted Jewish funerals. The court reasoned that the owner’s religious values (as expressed in business dealings) were fluid and indeterminate—it had a Christian focus, but not so exclusive as to close off business from atheists, Jews, and people of other faiths.

The court compared religious fluidity with gender fluidity. Its point was that religious belief is not always orthodox or rigid. Sometimes it’s a mixture of faiths; or no faith. Ditto for gender identity: some people are strictly male or female by birth and biological identity, but others—to use the religion analogy—seek to convert due to an “intensely personal decision.”

My students asked if the Supreme Court will review the case. The answer is maybe. Here is the latest:

05/11/2018 Docket Entry: APPLICATION (17A1267) TO EXTEND THE TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI FROM JUNE 5, 2018 TO AUGUST 3, 2018, SUBMITTED TO JUSTICE KAGAN. …

09/18/2018 Docket Entry: THE MOTIONS TO EXTEND THE TIME TO FILE RESPONSES ARE GRANTED AND THE TIME IS FURTHER EXTENDED TO AND INCLUDING OCTOBER 24, 2018, FOR ALL RESPONDENTS.

So, we will have an answer soon. My guess is the Court will grant the cert petition (relying on four votes from conservative justices). Personally, I hope I am wrong—I believe the Sixth Circuit was correct.

President Trump Is Not Our First Racist, Anti-Immigrant President: Woodrow Wilson

As President Trump rallies his base, again, by vowing to place the military on the  U.S.-Mexico border, I share this brief immigration excerpt from my work-in-progress, “Delegating Racial Animus to Presidents: White Workers, Migrants, and Heightened Scrutiny.”

President Woodrow Wilson was a useful tool for Europhobes. As a scholar, he published a book that singled out the “sturdy stocks of North Europe” for contributing to America’s early success while disparaging “multitudes of men of the lowest class from the south of Italy and men of the meaner sort out of Hungary and Poland.” As a politician, he compared America’s breeding stock as the best of God’s creation. As a governor in 1912, he supported a eugenic sterilization bill.  Aligned with academic eugenicists, Wilson asserted that these undesirables had “neither skill nor energy nor any initiative of quick intelligence.”  To the future president, they were rubbish from low European nations who “were disburdening themselves of the more sordid and hapless elements of their population.”  In the oval office he fanned the fires against Europeans. 

Numerous presidents shared President Trump’s worldview of immigrants and blacks. My paper does not condemn them: I show that too much of our law has delegated the animus of white people—often voiced from unions— to Congress and on to the president. 
These policies are contrary to the Declaration of Independence, and constitutional guarantees of equal protection to “all persons”: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.”

“The Muslim Ban Cases You Cite Are No Longer Good Law”: NYU Journal Is Wrong

Thus said my (former) editor at the NYU Journal of Law and Liberty yesterday. He is half right. He is half wrong, too. And being half-wrong makes him … wrong.

My research makes the case that a president cannot use immigration powers to exclude or remove foreign nationals based on race. The president’s “Hire American” executive order (No. 13,788) targets Asian Indians without saying so—but that is the effect. By the way, if the order is about hiring the best, why not label it “Hire the Best”?

So, why is my former editor half wrong? He assumes that the Trump v. Hawaii ruling from this past summer makes his case that President Trump has a free hand in implementing immigration executive orders.

He has forgotten Trump v. Hawaii, Part I, decided by the Supreme Court a year earlier in 2017. 
I re-checked that case today and the 2018 Trump case. They are different rulings based on different versions of the "travel ban." What makes the travel ban of 2018 constitutional is that it is limited to foreigners have had had no prior contact with, or in, the United States. The 2017 Trump case (it was actually his second ban but the first to go to the Supreme Court) is quoted here:

The courts below took account of the equities in fashioning interim relief, focusing specifically on the concrete burdens that would fall on Doe, Dr. Elshikh, and Hawaii if § 2(c) were enforced. They reasoned that § 2(c) would “directly affec[t]” Doe and Dr. Elshikh by delaying entry of their family members to the United States.

The Ninth Circuit concluded that § 2(c) would harm the State by preventing students from the designated nations who had been admitted to the University of Hawaii from entering this country. These hardships, the courts reasoned, were sufficiently weighty and immediate to outweigh the Government’s interest in enforcing § 2(c). Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded.

In practical terms, this means that § 2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.

Translation: Courts cannot stop the president from excluding aliens (Trump case, 2018). But if aliens are already lawfully in the U.S., an executive order can be enjoined by a court, if there is evidence of a constitutional violation (Trump case, 2017). 
The H-1B visas holders in my paper are both outside the U.S. (e.g., India) but also here in the U.S., lawfully (e.g., San Jose, California). Certainly, those resident aliens fall under the 2017 ruling by the Supreme Court, no less than Dr. Elshikh above. Yet they are targeted by the "Hire American" executive order at the time of renewing their work authorization.

Is There a Kavanaugh Effect in Academia? A Personal Account

The Kavanaugh confirmation hearings polarized America. It also energized conservatives and liberals. Have conservatives in academia been emboldened to silence or mute liberals?

The NYU Journal of Law and Liberty is a libertarian law review. Their point of view is that governments over-regulate, and violate basic human liberties. They favor freely operating markets, including labor markets.

The journal invited authors with differing viewpoints to write research articles on President Trump’s regulation of immigration via executive orders.

I wrote on the “Hire American” executive order. It seeks to bring “rigorous” enforcement to the H-1B visa program. This visa is for “specialty occupations”—typically, computer programmers. By law, 65,000 visas can be issued. Every year this allotment is filled in a few days.

President Trump’s executive order impairs this system by requiring petitions be granted only for the “highest paid or most qualified” people. I have emphasized the text to show that the real meaning of the order is to significantly draw down H-1B visas below the allowable limit. After all, 65,000 foreign workers cannot all be the highest paid or the most qualified. The impact for technology employers could be significant.

I make an argument—with census data, with visa data, and with the Trump administration’s harsh language about immigrants taking work from Americans— that the order is biased against Asian Indians, who comprise more than 50% of the H-1B visas and 70% of the technology labor market sector. The order seeks to displace Indian workers for white Americans.

I presented my paper in February with others at NYU—a normal experience. My paper underwent a lengthy and thorough substantive editing in August and September, where I made substantial revisions.

Today—on the eve of publication— the journal required me to make four significant changes, two of them major (below), and “offered” that if I don’t meet the new deadline, my article will be delayed (without any certain date of publication). I have withdrawn my article and will start over.

The journal’s main concern is my failure to discuss Trump v. Hawaii, the “travel ban” (Muslim ban) Supreme Court case, and the Trump administration’s removal of its press conference from the White House website.

Here is my brief reply:

The more germane question at this point is why you and your fellow editors are insisting on such extensive revisions on October 16, 2018 when you returned my paper to me for substantive edits during the Labor Day holiday weekend (and which I returned in early September) without raising this concern.

Trump v. Hawaii was decided on June 26, 2018. Why has it become such an important editorial matter today when you never flagged this as a concern in late August/early September?

I note, to your point, that the Trump ban upheld by the Supreme Court was not an executive order but Proclamation No. 9645, a third redraft of two earlier executive orders (and significantly more narrow) that were thoroughly discredited by judges across a broad ideological and geographical range.

If President Trump wants to revise and narrow the “Hire American” executive order two more times, as he did with the travel ban that the Supreme Court actually ruled on in June, then I will agree with you that my analysis is wide of the mark.

To your comment that “but the transcript is easily accessible from the error page by using the search bar to search for it. This undermines the section of your paper which suggests that the briefing was removed to conceal the discriminatory motive.”

This is an entirely unfair criticism of my paper. Essentially, you are saying that the motives for the order are transparent because, with enough internet skill and persistence, a person can work past the White House error page—which I verified on several occasions—and get to the “real” motive behind the executive order.

That type of executive branch transparency is more fitting for President Vladimir Putin, not a United States president who is pushing the boundaries of executive orders to new and untested limits.

In short, this has become your article, not my article—and your comments below evince more than skepticism of my analysis but an intent to eviscerate its primary thesis of racially discriminatory intent behind the executive order.

So what has changed, all of a sudden? I really don’t know … but I do wonder if this type of aggressive and retrogressive editorial policy (raising new issues late in the process, not earlier) is related to the right’s pushback over Justice Kavanaugh. In terms of timing, I cannot think of another reason.

Elect Democratic House … and See Kushner Tax Returns

Everyone reading this blog paid federal taxes this past year. In tonight’s NYT, new reporting suggests that Jared Kushner avoided paying federal taxes entirely from 2009-2016.

With that in mind, you might want to read Andy Grewal, “Can Congress Get President Trump’s Tax Returns?,” published in Yale Journal on Regulation on February 13, 2017.

Just click here: http://yalejreg.com/nc/can-congress-get-president-trumps-tax-returns/.

Here is a quote to give you a gist of the matter:

In a recent Washington Post article, Professor George Yin argues that Congress can force Trump to make his returns available for legislative review. Legislators have embraced similar arguments.... 

The statutory authority for any congressional requests would probably come from Sections 6103(f)(1) & (2) of the tax code. 
Under (f)(1), some committees of Congress can request disclosure of Trump’s returns and can examine those returns privately. 
Under (f)(2), a non-partisan career official, the Chief of Staff of the Joint Committee on Taxation (JCT), may also request and privately examine those returns. 
Professor Yin argues that information obtained through Section 6103(f) can be subsequently disclosed to the public, when public disclosure serves a legitimate legislative purpose.

….

That law review article was written before Saudi Arabia-- where Jared Kushner has invested personal funds-- emerged as a suspect in a chilling murder of a journalist.
Thus, a Section 6103 audit would not be a fishing expedition or a personal vendetta but would serve a legitimate public policy interest to see whether the Trump administration's handling of this human rights case is influenced by income that was not reported as taxable nor paid on as taxes (as the rest of us do), but rather, invested jointly with the royal Saudi family.  

Delegating Racial Animus to Presidents: White Workers, Migrants, and Heightened Scrutiny

Dear Blog Readers:

I invite you to read and comment critically on the following. It's the introduction to my next research paper. It's still months away from completion. In particular: How clear is this opening presentation? Is it persuasive, or unclear, or off-putting? Your feedback is welcome! Post to FB or email me at mhl@illinois.edu. I am interested in candor, not pats on the back. Thank you in advance.  Sincerely, Michael

Delegating Racial Animus to Presidents:

White Workers, Migrants, and Heightened Scrutiny

A president directs border agents to administer an English literacy test to workers with employment visas. Separately, in response to tensions with China, he orders border agents to deny entry to Chinese visa-holders in STEM-field jobs. In addition, based on recent data showing that the U.S. admitted nearly equal numbers of workers from the Dominican Republic (7,602) and Norway (7,502), he orders immigration officials to reduce admissions from the island nation to 100 persons on grounds that Caribbean islanders are inferior to northern Europeans.  These are not actions taken by President Donald Trump. These are— with minor alterations— U.S. immigration policies from the past. Federal courts upheld these immigration restrictions, looking past clear evidence of racial animus. Those decisions remain valid precedents.

Courts should not blindly follow these "plenary power" precedents when racial animus motivates presidential actions. Nonetheless, these cases treat a president’s power over immigration as unreviewable or entitled to extraordinary deference. This approach has drawn from the nature of executive power in Article II of the Constitution, common law traditions of monarchs as embodiments of sovereignty, delegation of powers from Congress, and the accumulation of precedent.

But such high deference can be taken to extremes— for example, by allowing the internment of more than 100,000 Japanese Americans and resident aliens in U.S. concentration camps; sentencing resident Chinese workers to hard labor without a habeas corpus court hearing because they could not produce a white witness to testify to their residency; and excluding an Indian Hindu simply because he was not a white person. Judicial deference has ignored the possibility that certain immigration policies and actions are official expressions of bigotry and white supremacy.

I do not make these charges lightly but point to the fact that eleven presidents used executive orders and treaty powers to segregate indigenous people on reservations, eight presidents owned slaves while in office, occasionally using their Article II powers to explore the deportation of these migrant laborers to Africa, two presidents published widely in the eugenics movement, with one openly writing on “race suicide” for whites in America, one president used his powers to deny citizenship rights, enacted by Congress, to former black slaves, another president used an executive order to forcibly relocate and detain an entire nationality group—and more recently, a president’s legitimacy was attacked because of the sinister immigration lie that he was born in Kenya.

Current immigration jurisprudence is indifferent, if not blind, to the idea that executive power over immigration mingles occasionally with racial animus. I contend that whether Congress delegates its racial animus in matters of immigration, or a president acts on his own racial animus, courts should apply heightened scrutiny to actions that detain, restrict, remove, exclude, criminally punish without a trial, or incarcerate immigrants en masse. I present exhaustive evidence that white workers, acting on their racially defined interests, were—and are again— the main source of animus underlying restrictive, exclusionary, and punitive immigration measures taken by presidents against migrants of color and racially impure whites.