On the Constitutionality of Trump’s Immigration and Refugee Ban

On January 27th, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order bars Syrian refugees from entering the United States indefinitely, and it bars refugees generally for 120 days. The order also blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days. And chaos ensued. Scenes from airports across the country were heart-breaking, as people were kept from reuniting with relatives; protesters galvanized; the acting Attorney General was fired for instructing the Department of Justice not to enforce the order. There are at the moment 13 lawsuits challenging the order, with many more sure to come.

Unsurprisingly, polling on the issue breaks down along party lines. According to a recent Reuters poll, 51 % of Republicans strongly agree with the actions of their president; 53% of Democrats strongly disagreed.

One question looms large above all others: could these bans possibly be constitutional?

It depends on who you ask. The bans are either in violation of the 1st Amendment’s Establishment Clause, or else they fall within the plenary power doctrine, an area of the law that is understood to confer upon the political branches almost unfettered power, free from judicial review. 

Thinking about the question in this way, however, misses the mark. 

What do we mean when we ask whether something is unconstitutional? We generally use the term in an ontological sense, as if the Constitution exists in Platonic form and we can both decipher its meaning and apply to any situation. Thus, to the question whether the President’s actions are constitutional, we turn reflexively to the document and the prior meanings we ascribe to it. The courts need only recognize and apply these prior meanings. 

But this is not the right question. The question is not whether existing law stands in the way of the President’s actions. Rather, the question is whether the federal courts will choose to stand up to the President. If and when they do, the rest is easy. 

I am not encouraged. Think about the political context, and talks of nuclear option for the Senate confirmation process. Think also about the firing of Acting Attorney General Sally Yates, and the President’s response to the court decisions that followed his executive orders. Think about Terror. The War on Terror.

Will the court’s stand up to the President? I don’t know. What I do know is that nothing in the Constitution will help federal judges answer that question.

Alt-Right and "race realism" taken with a dose of history

The Diane Rehm show had a terrific discussion about race and immigration this week.  You can find it here.  Of particular interest to me is the conversation began by Jared Taylor, editor of American Renaissance magazine, a self-described "race-realist, white advocacy organization".  This particular exchange, early in the conversation, is particularly revealing:

REHM
Help me to understand what the term race realism means.

TAYLOR
Well, this has to do with the central element that does unite the alt-right. Among the many positions held by the alt-right, we reject the notion that race is some sort of sociological optical illusion. Race is a biological fact, whether we wish to recognize that or not, and we completely reject the idea that all races are exactly equal and equivalent and in effect interchangeable. 

TAYLOR
It's obvious that if a nation goes through substantial racial demographic change, many aspects of it will change, and a majority has the right to remain a majority. This is taken for granted in all non-white countries. You would never expect the Japanese or the Nigerians or the Mexicans to countenance some kind of immigration or other program that reduced them to a minority within a period of decades. They would laugh at it. 

REHM
Of course the United States has, from its very beginnings, taken in far more of a variety of races, some voluntarily and some otherwise. 

TAYLOR
Yes, but the very first immigration law established in 1790 by the very first Congress of the United States, when these fellows were sitting around trying to decide what sort of nation they are going to be, the very first naturalization law was going to restrict naturalizations to free, white persons of good character. 

REHM
And that's how you'd like to keep it. Is that correct? 

TAYLOR
Nations have a right to maintain some kind of cultural, racial and historical homogeneity, yes indeed. Furthermore we had an immigration policy, up until 1965, that was explicitly designed to keep the nation majority European. There was absolutely nothing wrong with this. The United States, people like to call it the American experiment. I don't like to think of my country as an experiment, a bunch of chemicals sitting over a Bunsen burner. 

TAYLOR
We have not suspended the laws of human nature in the United States of America. We are a nation like any other, and the extent to which we lose any kind of cultural, racial homogeneity, the extent that we become a multi-culti mishmash, we will become an ungovernable place...

This is breathtakingly refreshing.  It is a testament to Diane Rehm and her wonderful show.  I am particularly intrigued by Mr. Taylor’s gloss on the past.

Mr. Taylor argues that the white majority has a “right” to remain a majority.  Diane Rehm pushes back, and rightly so: the US has admitted a multitude of races and nationalities from the beginning of the country, “some voluntarily and some otherwise.” Taylor responds with the 1790 Naturalization Act, which reserved U.S. citizenship to “any alien, being a free white person.”  Mr. Taylor appears to read this language as a hardened racial classification.  One need not do so, of course; instead, this language could reflect a racialized baseline that accounted for the reality of slavery as it existed in the late 18^th Century.  In other words, the language of “free white person” is simply to draw a line between black people and everyone else.

Note that this second reading is much kinder to the founding generation and their conflicted views about race.  In contrast, Mr. Taylor’s reading sides with Dred Scott and the reading of our founding generation as racist and white supremacist.  He further ascribes this view to subsequent generations, up to 1965 and the Immigration and Nationality Act, which replaced the national origins quota system with a preference system.

So there you have it.  Mr. Taylor is essentially calling into question the First Reconstruction, which overruled Dred Scott and extended rights of citizenship to the former slaves, and the Second Reconstruction, which continued the earlier struggle.  Mr. Taylor objects to racial progress, diversity and multiculturalism.  He objects to the very things that many of us see as what makes the United States an exceptional country. 

More generally, what I find most interesting about Mr. Taylor’s views is how he deploys history and his reading of our shared past in order to tell a story of where we should be as a nation.  But of course, Mr. Taylor is telling you the story he wants you to hear.  I wonder what he would say, for example, about the Treaty of Guadalupe Hidalgo and its treatment of those living in the annexed Mexican territory.  I also wonder how he would fit Hawaiian and Alaskan statehood within his narrative, or the 1917 Jones Act, which extended US citizenship to the people of Puerto Rico, or the 1924 Indian Citizenship Act, which conferred US citizenship to American Indians born in the US.  Or the McCarran Walter Act of 1952, which removed race as an exclusionary category in immigration.

I imagine he would revert back to his view of the founding generation as racist and white supremacist.

Refreshing indeed.

Latinos, Obama, and 396,906

Ah, Mr. President, do us proud.  Figures released and reported by administration officials show that the government has deported a grand total of 396,906 "foreigners" over the last year.  Unsurprisingly, these are record levels.  The officials defend this deportation strategy by focusing on the deportees.  As reported by the N.Y. Times:

The officials said that 55 percent of the immigrants deported were criminal convicts, including 51,620 people convicted of felonies like homicide, drug trafficking and sexual offenses. The results were an 89 percent increase in deportations of criminals since the beginning of the Obama administration, the officials said. Of the remaining illegal immigrants deported, the great majority were arrested soon after they crossed the border illegally or had returned illegally after being deported, officials said.

 How is that for law and order?  Is this what passes for immigration reform in our present political climate?

Worse yet, according to a report by the Warren Institute on Law and Social Policy at Berkeley: the strategy has had a disproportionate impact on the Latino community.  Under the administration program, known as "Secure Communities," 93% of those immigrants arrested were Latino, even though Latinos as a whole only form two-thirds of those who immigrate into the United States illegally.  Also, about a third of the 226,000 immigrants deported under the program have spouses and/or children with American citizenship.  The researchers also found cases where immigration agents held U.S. citizens, even though immigration officials do not have authority to prosecute or deport American citizens.

This is change, all right.  Whether we can believe in it or not is a much different question.

The End of Judicial Activism?

I have been thinking a lot lately about Judge Walker’s ruling in California striking down Proposition 8, and Judge Bolton’s ruling on Arizona’s immigration law.  The most obvious response is that these rulings, and the reactions of those who oppose them, lay bare the silliness of the modern debate over judicial activism.  According to their critics, these rulings are exercises in judicial activism by liberal judges hell-bent on destroying everything we hold dear; yet recent rulings on gun rights, campaign finance, and race, to name a few glaring examples, are exercises in judicial restraint and the faithful exercise of judicial responsibilities in enforcing our beloved Constitution. 

This is bunk, obviously; Justice Scalia is no less an activist judge than Justice Marshall.  They just happened to care about different things.  This is true under any definition of activism you can think of, from the invalidation of statutes to the creative and dynamic interpretation of federal laws to the active use of the avoidance canon.  If you need support for this, take a look at the Supreme Court’s most recent pronouncement about the Voting Rights Act, Namudno v. Holder.  Rather than rule on the constitutionality of the Act, as most observers expected, the Court, in an opinion authored by Chief Justice Roberts, “avoided” the constitutional question.  It did so by essentially rewriting the statute to say something the text clearly did not say.  In the coming years, the Court is similarly poised to strike down the special provisions of the Act.  As I have written elsewhere, this is “activism on steroids.”

To focus on the concept of activism is thus to focus on the wrong target.  This is to focus on politics, not law, and to render criticisms of judicial rulings as questions of whose ox is being gored.  No shame in that, of course, but hopelessly unhelpful.

Instead, we should focus on the fact that judges are strategic actors, particularly those who sit at the top of the judicial hierarchy.  This is to say, the justices of the U.S. Supreme Court have policy preferences, which are reflected as best as possible in their rulings and votes from the bench.  This is true of all the justices, not only the liberal ones.  The moment we come to accept this truism, the better off we will be. 

Right off the bat, I can think of one big improvement on our politics: we won’t have to listen to Senator Sesssions pontificate about the dangers of judicial activism. 

Enough already.