{"id":2422,"date":"2018-10-26T03:39:16","date_gmt":"2018-10-26T03:39:16","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2422"},"modified":"2018-10-26T03:39:16","modified_gmt":"2018-10-26T03:39:16","slug":"immigration-struggle-can-states-resist-trump-on-immigration-part-2","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2018\/10\/26\/immigration-struggle-can-states-resist-trump-on-immigration-part-2\/","title":{"rendered":"Immigration Struggle: Can States Resist Trump on Immigration?\u2014Part 2"},"content":{"rendered":"Part One of this series established that the Constitution does not expressly dictate who has power over immigration. Moreover, the Court has consistently found that the Federal Government (Congress and the President) has plenary power in this field due to its unenumerated but inherent power of sovereignty. The Court has applied this doctrine to subject any state action toward immigrants to strict scrutiny, a far broader level of review than the rational basis review applied to federal action. Finally, Part One described how the Court used this doctrine to invalidate a state immigration statute, concluding that state action was preempted because of the level of control that the Federal Government operates over foreign policy and immigration.\n\nNow, Part Two will explore some of the strategies that Trump\u2019s opponents have used to resist his immigration policies from outside the Federal Government and discuss the likelihood of their success (or the reason for their failure).\n

The Legal Challenge to Trump\u2019s Travel Ban<\/p>\n One of the earliest methods used to resist Trump\u2019s immigration policies was a lawsuit directed toward what he had once referred to as a \u201cMuslim Ban<\/a><\/em>.\u201d Spearheading this litigation, the State of Hawaii argued that Proclamation Number 9645<\/a> <\/em>was unconstitutional because it separated people by religion and thus, violated the Establishment Clause of the First Amendment<\/a><\/em>. This argument centered on the past statements of President Trump, including but not limited to: \u201cIslam hates us,\u201d We\u2019re having problems with the Muslims,\u201d and \u201c[needing a] total and complete shutdown of Muslims entering the United States<\/em>.\u201d<\/a>\n\nTrump\u2019s opponents argued that these statements dictated strict scrutiny of the Travel Ban. Furthermore they argued that the government\u2019s pivot away from calling it a Muslim Ban<\/a><\/em>, <\/em>the inclusion of North Korea and Venezuela among the Ban\u2019s eight nations<\/a><\/em>, and the construction of an arbitrary waiver system<\/a> <\/em>represented an attempt to constitutionally dress-up a proxy for severely restricting Muslim immigration.\n\n <\/em>While the Court agreed that Trump\u2019s statements should be considered, it announced that it must balance these statements with the authority of Trump\u2019s office<\/a><\/em>. Remarkably, the Court next completely undermined the relevance of Trump\u2019s statements when it announced that rational basis review continues to apply<\/a><\/em>. Ultimately, \u201cso long as the policy can reasonably be understood to result from a justification independent of unconstitutional grounds<\/a><\/em>,\u201d the policy will be upheld. Here, the Court agreed that there was a legitimate national security justification, thereby upholding the viability of the Proclamation<\/a><\/em>.\n\nThis decision dealt a tremendous blow to Trump\u2019s opponents because it effectively strengthened the President\u2019s control over immigration policy. By shrugging off the animus present in Trump\u2019s statements and refusing to apply a heightened level of scrutiny to the alleged Establishment Clause violation, the Court weakened the Constitutional restraints on the President. These restraints could have provided Trump\u2019s opponents a weapon for resistance. Now, Trump\u2019s potential exclusionary policies are almost guaranteed to be upheld because the Court has set a threshold so low that it ceases to function as one. A single dressed-up justification is all Trump needs to hide behind months of public animus<\/a><\/em>.\n\nEven though this case does not apply to the rights of immigrants already present<\/a> <\/em>in the U.S., there is uncertainty regarding how this precedent will be applied in future cases. Opponents should at least be concerned that Trump v. Hawaii <\/em>weakens their likelihood of success in challenging Trump in court over a violation of immigrants\u2019 rights.\n

State Legislation and Policy<\/p>\nIn the wake of Trump\u2019s crackdown on immigration, opponents have turned to state policymakers to aid in the resistance. As discussed in Part One, using the states as a legislative vehicle to resist federal immigration policy<\/a><\/em>is not new. However, Trump\u2019s opponents must navigate this strategy in a way that avoids the preemption pitfalls that invalidated the Arizona legislation in 2012.<\/a><\/em>\n\nWhile several states have taken initiative, California, referred to by some as \u201cthe resistance state,\u201d has led the charge in opposing Trump on immigration<\/a><\/em>. An integral part of California\u2019s resistance is found in a trio of \u201csanctuary state\u201d laws. These three laws seek to protect immigrants from federal authorities: \u201cSenate Bill 54, Assembly Bill 103, and Assembly Bill 450\u2026restrict California law enforcement officials from cooperating on federal immigration actions, limit the ability of local jails to contract with the federal government to house immigrant<\/a> <\/em>detainees, and require employers to ask for a warrant before allowing immigration authorities to conduct a workplace raid.\u201d<\/a><\/em>\n\nThese statutes, enacted in the most populated state of the union, represent a major obstacle to Trump\u2019s immigration policy. While California argues that these laws are constitutional, the Trump administration disagrees. Attorney General JeffSessionssued the state, arguing that its policies violate the Supremacy Clause of the Constitution<\/a><\/em>\u2014the same Clause used to invalidate Arizona\u2019s legislation<\/a><\/em>.\n\nThus, conservatives and liberals have engaged in a gravity-defying gymnastic exercise that allows them to swap legal rationales. Now, progressive California is arguing that the 10th <\/sup>Amendment provides leeway to the states<\/a><\/em>, and the conservative, Federal Government is arguing that state action on immigration is preempted by federal plenary power and the corresponding federal regulations.\n\nBolstering Session\u2019s argument is Section 1373<\/a> <\/em>of the Immigration and Nationality Act. It states: \u201c\u2026a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.\u201d\n\nUnfortunately, Section 1373, in conjunction with the previously successful preemption argument, presents a formidable barrier to Trump\u2019s opponents. California is attempting to argue that this provision must be construed narrowly and that California\u2019s statute remains in compliance<\/a><\/em>. However, given the recent decisions of Trump v. Hawaii <\/em>and Arizona v. United States <\/em>this will be a tough obstacle to overcome. Both cases strengthened federal control over immigration, and there is scant evidence to believe that the Court will reverse course. While the Northern District of Illinois held Section 1373 to be a violation of the 10th <\/sup>Amendment in City of Chicago v. Sessions<\/a><\/em>, Trump\u2019s opponents should not dismiss the likelihood that the Supreme Court will uphold it.\n

Conclusion<\/p>\n This two part blog represents a surface-level discussion about the Court\u2019s entrenchment of immigration power with the Federal Government. I believe that this entrenchment presents a serious challenge for those who wish to fight Trump\u2019s immigration policies via the courts\u2014especially after the ruling in Trump v. Hawaii<\/em>. Moreover, Trump\u2019s opponents would be na\u00efve to discount the lethal precedential combination of plenary federal power and preemption. In conclusion, the Resistance should utilize the judiciary, not to defeat Trump, but to slow down the implementation of his policies. This would allow them to \u201cbuy time\u201d to win the real battle\u2014the 2018 and 2020 elections. Ultimately, because the Federal Government has control over immigration policy, Trump\u2019s opponents will need to control the Federal Government in order to win this fight.\n\n \n

Suggested citation: Zach Espinoza, Immigration Struggle: Can States Resist Trump on Immigration?\u2014Part 2<\/em>, <\/span>Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter<\/span>, (Oct. 26, 2018), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/immigration-struggle-can-states-resist-trump-on-immigration-part-2\/.<\/span><\/p>","protected":false},"excerpt":{"rendered":"

I believe that this entrenchment presents a serious challenge for those who wish to fight Trump\u2019s immigration policies via the courts\u2014especially after the ruling in Trump v. Hawaii. Moreover, Trump\u2019s opponents would be na\u00efve to discount the lethal precedential combination of plenary federal power and preemption. <\/p>\n","protected":false},"author":1,"featured_media":2423,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,27,28],"tags":[66,248,816,1060,1346,1564,1567],"class_list":["post-2422","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-recent-stories","category-student-blogs","tag-10th-amendment","tag-california","tag-immigration-law","tag-muslim-ban","tag-sanctuary-state-laws","tag-trump","tag-trump-v-hawaii"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2422","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2422"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2422\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2423"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2422"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2422"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2422"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}