The President’s Immigration Powers: Migratory Labor and Racial Animus

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Since the nation’s founding, presidents have been motivated by racial animus while using executive powers over migratory labor. Early presidents enforced the Constitution’s fugitive slave provision. They explored diplomacy to deport free blacks to Africa. From the 1880s through 1940s, presidents acted on the racial animus of workers by restricting laborers from China and Japan, and later, Europe. FDR’s internment order resulted in the coerced labor of Japanese Americans. 

Against this backdrop, I examine President Donald Trump’s immigration orders that affect employment relationships. Eighteen lawsuits have been filed: They challenge the travel ban; rescission of DACA (Deferred Action for Childhood Arrivals), DAPA (Deferred Action for Parents of Americans), and TPS (Temporary Protected Status); covert vetting for citizenship petitions (Controlled Application Review and Resolution Program, or CARRP), and presidential obstruction of MAVNI (Military Accessions Vital to the National Interest), a program for foreigners in the military to gain citizenship.

I quantified results for 33 first-level and subsequent rulings: (1) More than 70% involved the Administrative Procedure Act and Fifth Amendment’s Due Process Clause. (2) Jurisdiction was found in 76% of the cases. (3) In 80% of the cases involving a request for an injunction, courts granted some form of relief. (4) Overall, plaintiffs won all or part of 93% of the rulings.

I conclude that President Trump’s approach to migratory labor follows numerous presidents; however, his predecessors acted before the Immigration and Nationality Act of 1965 and development of due process rights for aliens. His orders and actions are so numerous and sweeping that the Supreme Court is unlikely to hear many cases. President Trump’s apparent overreach suggests that he is eroding executive powers over immigration.