February 7, 2017
By Dale L. Wilcox
The Massachusetts judge who dissolved a restraining order against it got it right.
Reading through the dozen-plus complaints filed so far against the Trump visa freeze reminds one of the lawyers in ancient Greece who would parade the wife and children of the accused before the judge and jury to emotionally dissuade them from a conviction. First among those here to carry on that tradition is probably Washington, the only state to file a complaint so far and the only complainant to obtain a temporary restraining order (TRO) that applies nationwide. According to state attorney general Bob Ferguson, the state must “protect . . . its residents, its employers, and its educational institutions” against the president, whose order is “separating” families, “harming” residents, and “undermining” the entire state in its interest to remain “a welcoming place for immigrants and refugees.”
The parade of horribles continues. Ferguson goes on to single out the “injuries” caused by the potential loss of H-1B visas to Washington-based tech behemoths Microsoft, Amazon, and Expedia. As immigration-control advocates know well, the sentimental exploitation employed by “immigration rights” activists has always been used to legitimize the cheap-labor lobby. That marriage of convenience is on full display in Ferguson’s complaint.
The already controversial federal judge who granted the nationwide TRO, James Robart of the state’s western district, made what’s perhaps first-of-its-kind in U.S. jurisprudence by granting the state legal standing via the parens patriae (parent of the nation) doctrine. Although individual states can obtain parens standing to vindicate certain “state sovereign” interests, such as the protection of their citizens’ economic well-being, it’s rare, and it’s likely never been applied in an area like immigration, which is uniquely under the federal government’s purview.
And given Ferguson’s emphasis on Big Tech’s injury, it’s cruelly ironic that the landmark parens case involved the Commonwealth of Puerto Rico suing apple growers in Virginia for discriminating against Puerto Rican workers by replacing them with cheaper foreign labor. As the Immigration Reform Law Institute has noted in its cases against the government over guest-worker programs, America’s open-borders system has allowed the tech industry to compress American white-collar wages for decades. Big Tech execs, in Washington at least, just can’t be satisfied.
You wouldn’t know it by the rate at which the injunctions against the president have been granted, but, traditionally, courts have had very limited responsibility over the areas of naturalization and immigration. Our policy toward foreign nationals is naturally intertwined with foreign policy and national security. The so-called plenary-power doctrine states that it is within the unique prerogative of the elected branches to set such policy and not be beholden to the whims of a single judge. As the Supreme Court famously explained in Harisiades v. Shaughnessy (1952): “Any policy toward aliens is . . . interwoven with . . . foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
That the elected branches have complete authority over immigration was firmly established back in the 18th century, when the legal foundation for sovereignty and nationhood began taking root. The work of early Law of Nations scholars such as Emer de Vattel was read and absorbed by English common-law jurists and their American progeny such as James Madison and Benjamin Franklin. Fast-forward three centuries and the Supreme Court was still carrying the torch, with Justice Felix Frankfurter in Galvan v. Press (1954), writing that “policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government” and are “as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of government.” It is therefore our core separation-of-powers system that’s at stake in the Washington case and the general lawfare campaign against the president’s visa freeze.
Ferguson’s list of nine claims, although too many to tackle here, would do much to remove these “tissues” if approved by the court (which Judge Robart has already tacitly done in his temporary injunction order). In its opening claim, based on the Fifth Amendment’s guarantee of equal protection, the state alleges that its visa-holder residents are suffering from “discriminatory treatment based on their country of origin and/or religion, without lawful justification.”
This last qualifier is key. The president has broad authority under our immigration laws to “suspend entry of certain aliens” for reasons that need only be “facially legitimate” (the “rational-basis test”). As Massachusetts district court judge Nathaniel Gorton decided this past Friday in his own order that dissolved another TRO, if the executive needed to discriminate against legal permanent residents or non-resident aliens, he could do so with only a simple rationale. The rationale Gorton purloined from Trump’s executive order, “to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks,” he found to be legitimate (if not substantial).
The state’s other Fifth Amendment claim, alleging a violation of procedural due process, is based on the belief that some of its residents were unlawfully deprived of a liberty interest (here, their visa) without notice or a hearing. Unfortunately for them, aliens who have been given the privilege to come here have never been found to have a constitutionally protected property or liberty interest in their own visa. If this claim is granted, it would go far in creating a “right” for foreigners to enter our sovereign borders.
Similarly problematic is Ferguson’s claim under the establishment clause, the guarantee against the government creating policies that put some religions ahead of others. In asylum law, where we admit people who are persecuted for their religion, this is all we do. And although not specifically raised in the decision in Rajah v. Mukasey (2008), a challenge against the NSEERS (National Security Entry-Exit Registration System), a program whereby the Department of Homeland Security requires special information from holders of temporary visas who are citizens of designated countries on a terror list, that case did raise similar religious-discrimination claims, which were swiftly brought down by the court. In finding against the Lutheran Social Services of New York, which alleged that the program was “motivated by an improper animus toward Muslims,” the court relied on the fact that the requirement applied to non-Muslims from the covered countries and also didn’t apply to Muslims from countries outside the list. The same is true of the list used by Trump.
As more TROs hit their deadlines, hopefully cooler heads will prevail and we will see more decisions, along the lines of Gorton’s, that appreciate America’s independence as a nation and its right to self-preservation.
Article also published at: Dale Wilcox, Trump’s Visa Freeze Stands on Solid Legal Ground, National Review, Feb. 7, 2017
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