Wednesday, October 17, 2018

“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.

No comments: