After repeated campaign claims that Obama’s executive order on immigration was an extreme overreach of executive power, it doesn’t come as a surprise Trump has issued an executive order of his own that runs contrary to what Obama was trying to accomplish. In the wake of several questionable orders that have incited national outrage, San Francisco is fighting back and has filed a lawsuit against Trump in an attempt to block the order that would defund sanctuary cities.
In a nutshell, a sanctuary city is a jurisdiction that limits local law enforcement cooperation with federal immigration agents. These safe-haven cities don’t inquire into a person’s immigration status and do not use municipal funds or resources to enforce federal immigration requests.
Although a sanctuary city cannot stop the federal government from enforcing immigration laws within their jurisdiction, federal officials often do rely on the cooperation from local authorities to enforce these laws. For example, consider when an illegal immigrant gets arrested, is set to be released, and federal officials request local law enforcement to keep the illegal immigrant detained. This requires cooperation and it’s something sanctuary cities could refuse to do. In fact, case law suggests local compliance is entirely involuntary; the federal government cannot force local officials to enforce federal law.
California, Vermont, Connecticut, and Rhode Island are the only states that have laws limiting local cooperation with federal authorities, but, according to the Immigrant Legal Resource Center, 39 cities, San Francisco being one of them, across the U.S. have policies enforcing limited cooperation. Trumps executive order claims these sanctuary cities are violating federal law because they “shield aliens from removal from the United States”. The order says state and local law enforcement agencies can perform the functions of an immigration officer and threatens,
“…jurisdictions that willfully refuse to comply…are not eligible to receive Federal grants…”.
The 10th Amendment, along with case law, tells us the federal government cannot force non-federal entities to do their dirty work. Herein lies the major problem with Trump’s executive order because it’s asking, or otherwise coercing, states to do so.
Case law also tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies. While the U.S. Constitution says the federal government can put conditions on the money they give out, case law tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies. Conditions can be implemented, but they must meet certain requirements.
As you can see, Trump’s executive order has quite a few constitutional hurdles to jump before it can be held valid. Case law suggests the order as written could prove unconstitutional, but we can assume Trump chose his Supreme Court nominee carefully in the sense that he hopes his nominee will further his own political agenda. If Neil Gorsuch is confirmed as a Supreme Court Justice, there’s a legitimate fear looming that his vote could sway the bench in Trump’s direction.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Should U.S.- citizen fathers be treated the same as U.S.- citizen mothers? Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to unmarried parents—a father who was a U.S. citizen and a mother who was not. Although Morales-Santana became a permanent resident of the U.S. in 1975, the issue of citizenship came up when the federal government initiated deportation proceedings against him.
Asserting he was in fact a U.S. citizen, the government denied Morales-Santana citizenship status on the grounds that his father didn’t meet residency requirements to transfer citizenship. Morales-Santana argued the relevant law was a violation on equal protection grounds and the Supreme Court decided to take this issue head on when they heard oral arguments in early November.
Under the law at the time of his birth, Morales-Santana could only be considered a U.S. citizen if his father had lived in the U.S. for at least 10 years before Morales-Santana’s birth, with at least 5 of those years being after turning 14. Morales-Santana’s father couldn’t meet those requirements because he moved to the Dominican Republic just 20 days shy of meeting that 5-year prong of the law. Had Morales-Santana’s mother been a U.S. citizen at the time of his birth, he would have automatically been a U.S. citizen despite being born outside the U.S.
Sound like a double standard? We know the 5th Amendment affords equal protection from the federal government and the U.S. Court of Appeals for the 2nd Circuit sided with Morales-Santana and ruled the laws governing citizenship for the children of unmarried parents violated the U.S-citizen father’s constitutional right to be treated the same as a U.S.-citizen mother.
Equal Protection under the 5th Amendment
The legal requirements can get pretty complex because the specifics of certain immigration laws have changed quite often throughout the years, but Morales-Santana had 2 ways of gaining citizenship (other than naturalization):
As you can see, residency requirements are quite different, making it harder for children of U.S.-citizen fathers than children of U.S.-citizen mothers. Morales-Santana couldn’t gain citizenship under the portion of the law that transfers citizenship from a U.S.-citizen mother since his mother wasn’t a citizen and, although Morales-Santana’s father was in fact a U.S. citizen, he didn’t meet the residency requirements of the law.
Despite the fact that Morales-Santana’s father was only 20 days away from meeting the residency requirements, why in the world should a U.S.-citizen father have to meet longer residency requirements than a U.S.-citizen mother?
Federal Government Disagrees
U.S. Attorney General Loretta Lynch argues there’s no equal protection violation because the law is based on the citizenship of the parents rather than the gender. When a child is born to parents of two nationalities, there will inevitably be competing interests. The rationale is that the U.S.-citizen parent needs to have the 10-year residency requirement in order to build a stronger physical connection to the U.S. since the alien parent would introduce a competing national influence.
The remaining section that transfers citizenship to a child born out of wedlock from a U.S.-citizen mother, the government argues, isn’t based on gender either, but rather solely on the legal relationship that an unmarried birth mother has to her child. A father must establish paternity before any legal relationship can exist. I can see how this would be a valid basis for crafting the law in this manner. Nevertheless, the application of the law (whether it was inadvertent is to be determined) does make it harder for U.S.-citizen fathers to transfer citizenship to their children born out of the country.
Even if the intention behind the gender-specific language was based on the fact that unwed mothers have more legal rights to the child than the father, once paternity is established this argument is moot and, at that point, why would the father still have to establish longer residency requirements?
SCOTUS Previously Deadlocked
This isn’t the first time the high court has been faced with this issue. In 2010, the Supreme Court agreed to hear a case on the same issue, but the court deadlocked 4-4, leaving the lower-court decision intact. Although Justice Elena Kagan will participate in the case (she recused herself from the 2010 case), the court is still down a Justice and could potentially end up in another deadlock.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
If you follow immigration policy, you know there’s been a lot of back-and-forth debate about whether or not to deport undocumented residents in the U.S. You also probably know there’s been quite a bit of controversy surrounding President Barack Obama’s stance on immigration and the executive orders he’s issued during his tenure.
Back in 2014, President Obama announced his plans to implement policy, via executive orders, to protect undocumented immigrants from deportation. The policy is called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and not only does it offer temporary protections from deportation, but it also authorizes work permits to about 5 million undocumented immigrants, most of which are parents of U.S. citizens.
The policy is modeled after a previous version, DACA, that offered reprieve to child immigrants, and basically just expanded the qualifying age group. Herein lies the controversy. Texas, along with 25 other states, challenged the constitutionality of Obama’s action, citing a lack of authority to issue such orders, and the case made it all the way to the Supreme Court. However, because SCOTUS is currently down a Justice, the court deadlocked on the decision, leaving millions of undocumented immigrants in legal limbo.
What Exactly Is an Executive Order?
They’re legally binding orders given by a president to federal administrative agencies. Oftentimes, they are used to direct or guide these federal agencies in their execution of laws or policies. Executive orders can declare national emergencies, impose sanctions on other countries, set federal purchasing policies, and dictate working conditions for federal employees, to name a few.
Where Does the President Get His Authority?
Executive orders have the same legal effect of a congressionally established law, but they don’t require congressional approval to take effect. Despite this, a president can only give an executive order if the power is granted via legislative authority, if Congress expressly delegates some form of discretionary power to the president, or if it comes from a power directly granted via the Constitution.
How Long Do They Last?
Once an executive order is signed by a president, it becomes law. An executive order will stay law unless Congress takes legislative action to limit the law surrounding the executive order or is reversed by presidential authority (whether that be the issuing president or a new president).
Let’s not forget, though, that all laws are subject to judicial review and executive orders are no different. Orders can be challenged in court on the grounds that the order deviates from congressional intent or, in the case of Obama’s DAPA policy on illegal immigrants, lack of authority to issue said orders. Absent judicial review, Congress has the option to reform the law and, thus, limit what the executive branch can do with respect to that law.
However, Congress is much less likely to challenge executive orders related to national security, foreign policy, and treaties since those are powers expressly granted to the executive branch via the U.S. Constitution.
So Why the Big Controversy?
Since taking office, President Barack Obama has signed 249 executive orders and received plenty of scrutiny. Many have often criticized President Obama for his constitutional overreach for his use of these executive orders, arguing that he uses them as a way to get around Congress.
This is precisely where the controversy stems because executive orders essentially allow a president to make laws without the consent of Congress. However, it’s long rooted in our history that Congress has given the President leeway in implementing and administering federal laws and programs, especially when it comes to national security and defense. In fact, supporters of Obama’s policy argue the president’s discretion over immigration is deeply interwoven in our law.
President Obama has signed far less executive orders than many former presidents. President Franklin D. Roosevelt signed 3,728 executive orders, which even if you take into consideration he served extra terms the numbers still far outreach Obama. President Woodrow Wilson served the same 2 terms and signed 1,803 executive orders during his tenure. Still, many argue it’s not the quantity that counts, but rather the content of the orders that are contrary to the intent of Congress that matter.
What Happens Next?
Congress can certainly take steps to limit future action, but unless another case is brought before SCOTUS, with a full bench of Justices, we won’t know the full breadth of the power the executive branch has when it comes to issuing executive orders. Until then, the outcome largely depends on which candidate wins the 2016 presidential election. Trump has repeatedly stated he would repeal Obama’s executive orders regarding immigration policy, while Clinton has vowed to maintain similar policies as Obama.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Immigration Judge Jack Weil’s statement last March that he has “literally taught 3 or 4 year olds immigration law” sparked a media debate over whether immigrant children should have a right to appointed legal counsel during deportation proceedings. After the recent decision by the Ninth Circuit in J.E.F.M., v. Lynch, teaching immigration law to toddlers facing deportation might be the only option. The court’s decision left Congress with the task of resolving the issue and immigrant children with no viable remedies.
The Right to Counsel during Deportation Proceedings
Immigrants facing deportation have a right to an attorney, but no right to appointed counsel. In other words, if a person cannot afford an attorney during a deportation hearing, he or she has no right to have one appointed. Immigration reform advocates argue that there should be a right to appointed counsel during deportation hearings, especially for children. Every year, thousands of children appear before immigration courts without legal counsel. It is unlikely that these children receive fair hearings given the complexity of immigration law and language barriers.
The convolutedness of immigration laws makes unrepresented children’s situation even more precarious. In J.E.F.M. v. Lynch, Judge McKeown stated that the complexity of US immigration law is “second only to Internal Revenue Code.” Attorneys usually receive special training before representing children in deportation hearings, but indigent immigrant children - many of whom do not speak English - must navigate this system alone.
There are some procedural safeguards for unrepresented children facing deportation. For instance, judges cannot accept an unrepresented child’s consent to deportation. Nevertheless, these safeguards appear insufficient. Between October 2004 and June 2016, over half of unrepresented immigrant children were deported, while only 10 percent of children with legal representation were deported.
The impact of deportation on a child’s life underscores the need for fair hearings. Many children who cannot afford attorneys have viable deportation defenses, such as asylum claims. It is not uncommon that children appearing before immigration courts fled their country to escape violent situations, and sending them back could be life-threatening. Yet thousands of children take on the deportation process without a lawyer.
J.E.F.M., v. Lynch
In J.E.F.M., v. Lynch, several civil rights organizations filed a class action lawsuit on behalf of thousands of unrepresented immigrant children facing deportation. The complaint alleged that the federal government’s failure to provide appointed counsel for these children violates the Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring “full and fair hearing[s]” before deportation.
The Ninth Circuit ruled that federal courts do not have jurisdiction to decide whether there is a right to appointed legal counsel until all administrative processes have been exhausted. Under the decision, an immigrant child would have to argue his or her right to appointed counsel before an immigration judge and lose their administrative appeals to the Board of Immigration Appeals before bringing the claim in federal court. This would be a difficult and lengthy process for an English speaking adult and an almost impossible task for a child accomplish alone. Consequently, the decision cut off immigrant children’s ability to seek a judicial review on the issue.
The Ninth Circuit, however, did appear sympatric and called on Congress to redress the situation. In February 2016, several Democratic legislators introduced the Fair Day in Court Act for Kids. If enacted, the law would provide a right to appointed legal counsel for children during deportation hearings. But, considering the controversial politics behind immigration law, it is unlikely that the situation for immigrant children will be remedied anytime soon.
For now, we can only hope that all immigration judges are gifted teachers.
Authored by Robin Sheehan, LegalMatch Legal Writer
Since the onset of Donald Trump’s campaign, we’ve been hearing about his plan to build a wall and about his strict stance on immigration issues. Up to this point, we haven’t heard many details regarding these new policies he plans to implement, but we finally got a glimpse in his recent speech out of Phoenix. Although he promises to “Make America Great Again,” can he really follow through with his plans for immigration policies?
Build a Wall
This has been Trump’s priority from the get go. The wall will be built with above-and below-ground sensors, towers, aerial surveillance, and enough manpower to guard the wall, locate tunnels, and keep out cartels. The most interesting part of his plan—to have Mexico pay for 100% of the wall. Not exactly sure how he plans to make this happen.
In fact, after Trump’s speech, Mexican President Enrique Peña Nieto adamantly insisted that Mexico would not pay for the wall and Mexico’s foreign Minister says this point is nonnegotiable. Although Trump denies ever speaking with him about payment of the wall, Peña Nieto maintains he made this point clear to Trump during their recent meeting.
Trump plans to detain illegal immigrants until they can be physically deported back to the country they came from, rather than release them just across the border, but he can’t entirely keep this promise either, as many countries refuse to take back their own citizens. Not only that, but this could result in lengthy and unnecessary detaining periods which presents civil rights issues.
Zero Tolerance for Criminals
The day he takes office, Trump plans to remove the 2 million criminal aliens from the country. Other than issue detainers for illegal immigrants immediately upon arrest and triple the number of deportation officers within the department of Immigration and Customs Enforcement, Trump didn’t give much other detail. He did, however, state he plans to pass what he calls “Kate’s Law,” which would mandate minimum sentences for criminal aliens convicted of illegal re-entry.
Hiring 5,000 more Border Patrol agents is also on the list, but there was no mention of the costs associated with hiring this nearly 25% increase.
Block Funding for Sanctuary Cities
Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars. Withholding federal money for compliance with federal policies isn’t a new concept, as it’s regularly done today so this one could fly.
Cancel Unconstitutional Executive Orders and Enforce All Immigration Laws
In 2012, President Obama granted temporary reprieve from deportation to migrant children. Trump, along with many others, believe these actions were unconstitutional. In 2014, Obama tried to expand this program; Texas and 25 other states challenged the constitutionality of his action. A federal judge stayed the President’s executive order and it remains that way ever since the Supreme Court deadlocked in a 4-4 decision.
Presidents get their powers to issue executive orders only when authority is taken from the constitution, current legislation, or from Congress delegating such power. The law mandates illegal aliens be removed and, according to the federal Judge’s opinion, there isn’t a law in effect that gave the administration the power to issue this order. Supporters say Congress delegated the power to deal with immigration issues but, with an equally divided court, the Supreme Court effectively refused to answer the question.
Regardless, Trump would have the authority to revoke Obama’s executive order.
Only Issue Visas from Countries with Adequate Screening
Trump initially called for banning Muslims from entering the country and later switched to banning Syrian refugees. Now, his stance appears to have softened by claiming only individuals placed through “extreme vetting” will be allowed in, but this could just be a way to mask the discriminatory motives behind his initial harsh stance.
Trump also stated he would create a list of countries from which immigration will be suspended, where he plans to build safe zones in order for refugees to stay in their home region. Once again, he promises others will foot the bill— “we’ll get the money from the gulf states.”
Ensure Countries Take Their Deported People Back
There are several countries that are uncooperative and refuse to take back their citizens. However, the Supreme Court has ruled we cannot permanently detain these illegal aliens indefinitely, so any illegal criminals must be released after their sentence has been served.
Trump did not offer a solution on how he plans to force other countries to take back their citizens.
Cut Off Benefits and Reform Legislation to Benefit American Workers
Trump plans to ensure E-verify, an online system employers can use to check whether applicants are authorized to work in the U.S., is fully utilized. Additionally, no government benefits for illegal immigrants will be issued.
Biometric Entry-Exist Visa Tracking System
This one is actually already law, but it’s never been implemented or used. Trump wants to begin this process in order to track expired visas. This would require building infrastructures at points of entry and exit, new personnel, and a whole slew of other hurdles, which is why it’s never been implemented.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law