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:
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.
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.
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