Legislative Update: 2/14/2017
By: Robert Law
A three judge panel from the Ninth Circuit Court of Appeals refused to lift District Judge James Robart’s temporary restraining order (TRO) that blocks the Trump administration from implementing its temporary travel freeze. (See FAIR Legislative Update, Feb. 7, 2017) In a unanimous “per curiam” order, the appeals court denied the Justice Department’s (DOJ) request to reinstate the 90-day freeze on entry of individuals from countries that are hotbeds for terrorism and the 120-day freeze on refugee resettlement. (State of Washington v. Trump, Feb. 9, 2017 at 3) The three judges to rule against the Trump administration were William Canby (Carter appointee), Richard Clifton (George W. Bush appointee), and Michelle Friedland (Obama appointee).
In another blatant example of judicial activism, the Ninth Circuit essentially created new law to rule against the executive order. First, the court found that the states of Washington and Minnesota have standing (a requirement to bring a lawsuit) on the extraordinary basis that the state universities are “harmed” by the claim that some students and professors might be unable to attend the universities during the travel freeze. (Id. at 8-13) Ironically, buried in the middle of the 29-page decision the appeals’ court says, “Within our system, it is the role of the judiciary to interpret the law” as it then proceeds to legislate from the bench. (Id. at 14)
Outrageously, the judges determined that all non-citizens, including those who have no connection to the country, are entitled to constitutional protections. “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent,” the court wrote while citing cases that involved people already in the country. (Id. at 20-21)(internal quotations omitted) “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel,” the court wrote. (Id. at 19) The court’s reasoning is flawed for many reasons. While all persons within the U.S., including illegal aliens, are entitled to varying levels of due process based on their status, the executive order is merely canceling visas and excluding people before they enter. Thus, the Fifth Amendment’s Due Process Clause does not apply. Significantly, the court’s claim that illegal aliens have an unfettered “right to travel” is contrary to established law. For example, in a 2001 case a federal court ruled, “It would be curious indeed if the law gave illegal aliens a fundamental right to travel about this country when their mere presence here is a violation of federal law.” (John Doe No. 1 v. Georgia Dep’t of Pub. Safety, 147 F.Supp.2d 1369, 1373 (N.D. Ga. 2001))
Continuing its biased attack against the Trump administration, the Ninth Circuit essentially said the White House was lying that the executive order does not apply to LPRs. Shortly after the executive order was issued on January 27, the White House clarified that green card holders were not subject to the travel freeze. (See FAIR Legislative Update, Jan. 31, 2017) Despite this clear statement, the court wrote, “At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” (State of Washington v. Trump, Feb. 9, 2017 at 21) “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order,” the judges continued. (Id. at 22) “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” (Id.)(emphasis added)
Similar to Judge Robart’s ruling (which contained no legal analysis), the Ninth Circuit fails to even mention the relevant statute that clearly authorizes the travel freeze. Section 212(f) of the Immigration and Nationality Act (INA) states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (INA § 212(f); 8 U.S.C. § 1182(f)) Unsurprisingly, the Ninth Circuit is the most overturned appellate court. For example, in 2012 the Supreme Court reversed 86 percent of the rulings it review from the Ninth Circuit. (See Fox News, Feb. 9, 2017)
President Trump and key Republican lawmakers blasted the Ninth Circuit’s politically motivated opinion. “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!,” Trump tweeted shortly after the ruling was announced. (President Trump’s Twitter) “’Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.’ A disgraceful decision!,” Trump added Friday morning in reference to the courts’ failure to mention INA Section 212(f). (Id.) Senator Tom Cotton (R-AK) declared, “President Trump’s order to temporarily pause the refugee program and travel from seven war-torn countries is plainly legal under the Constitution and our immigration laws. No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president.” (Cotton Press Release, Feb. 9, 2017) Congressman Trey Gowdy (R-SC), a former federal prosecutor, added, “No one familiar with the 9th Circuit Court of Appeals should be surprised at today’s ruling. The 9th Circuit has a well-earned reputation for being presumptively reversible.” (Gowdy Press Release, Feb. 9, 2017) “It seems clear to most of us – not on the 9th Circuit Court of Appeals – there is no right to come to this country for non-citizens of the United States.” (Id.)
Legal scholars agreed. Appearing on MSNBC’s “Hardball,” Harvard Law Professor Emeritus Alan Dershowitz—of O.J. Simpson murder trial fame—said, “Look, this is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.” (See Breitbart News, Feb. 9, 2017) Similarly, CNN Legal Analyst Paul Callan said on “AC360” that “what has surprised all the lawyers who have looked at this decision is that what the court said here is that the state of Washington, because it brings students into its universities, it brings customers into its restaurants, is the representative of virtually anybody across the world who’s not an American citizen…. Why would they have standing to appear in our federal court, and argue that the U.S. Constitution protects their rights? I think the court overreached.” (See Breitbart News, Feb. 9, 2017)
It is unclear how the Trump administration will respond. Generally, the administration has three procedural options: appeal to the Supreme Court; request an en banc hearing before the entire Ninth Circuit; or return to Judge Robart’s court to litigate the merits of the executive order’s legality. The DOJ said it is “reviewing the decision and considering its options.” (Law360, Feb. 9, 2017) During a Friday press conference with Japan’s prime minister, President Trump said “We are going to keep our country safe” and “will be doing something very rapidly having to do with additional security for our country.” (The Hill, Feb. 10, 2017) Citing unidentified sources, MSNBC’s Joe Scarborough claimed the White House is drafting a new executive order with “more specific language.”
In the meantime, national security continues to be at risk as individuals we cannot properly vet are admitted into the country while the travel freeze remains blocked. In fact, 77 percent of the 1,100 refugees resettled in the U.S. since Judge Robart’s ruling are from the seven countries named as hotbeds for terrorism. (Washington Times, Feb. 9, 2017)
True Immigration Reformer Jeff Sessions Sworn in as Attorney General
By: RJ Hauman
Last Thursday, true immigration reformer Sen. Jeff Sessions (R-AL) was sworn in as the 84th Attorney General of the United States. (Washington Times, Feb. 8, 2017) Sessions, who served as a U.S. Attorney and Alabama Attorney General prior to his election to the U.S. Senate in 1996, reaffirmed his commitment to immigration policies that serve the national interest and are rooted in the rule of law. (Id.) “We need a lawful system of immigration that serves the interests of the people of the United States,” Sessions declared at his swearing-in ceremony. (Id.) “That’s not wrong, that’s not immoral, that’s not indecent.” The new attorney general also noted that the U.S. admits more than a million lawful immigrants a year but illegal immigration was damaging the country. (Id.) “We need to end this lawlessness that threatens the public safety and pulls down wages of working Americans,” Sessions said. (Id.)
The swearing-in capped a bitter confirmation battle that crested with a procedural rebuke of Sen. Elizabeth Warren (D-MA) for impugning the character of a colleague on the Senate floor. (New York Times, Feb. 8, 2017) Since President Donald Trump nominated Sessions to head the Justice Department in late November, Senate Democrats and open borders advocates accused him of being a racist and repeatedly distorted his record. (Id.) A committee hearing on his nomination included baseless indictments from lawmakers like Rep. John Lewis (D-GA) and Sen. Cory Booker (D-NJ), who broke with Senate tradition to testify against a peer. (Id.; see FAIR Legislative Update, Jan. 17, 2017) Despite the hostile opposition, Sessions was confirmed as the nation’s top law enforcement official late Wednesday in a near party-line vote, 52-47. (Roll Call Vote #55) Senator Joe Manchin (D-WV) was the only Democrat to break ranks in support of Sessions. (Id.)
One of the first tasks facing the Sessions-led Justice Department will be taking over ongoing litigation regarding President Trump’s executive orders. Sessions is also expected to begin taking action against the 300 sanctuary jurisdictions around the nation that have adopted policies that impede federal immigration enforcement and protect criminal aliens. These policies have been directly responsible for crimes committed against innocent citizens, whom our laws are meant to protect. The new attorney general will also have the ability to help the nation’s beleaguered immigration courts which are buckling under historic backlogs caused largely by the Obama administration’s catch and release policies. Today, nearly 500,000 cases are waiting to be heard, and many of those released will never show up for their hearings.
FAIR President Dan Stein congratulated Sessions in a statement shortly after his confirmation vote. (FAIR Press Release, Feb. 8, 2017) “Sessions is unparalleled in his knowledge of the proper role of the Department of Justice, the legislative process, and the rule of law, all of which will be critical in restoring much-needed accountability and responsibility to the nation’s immigration policies,” Stein said. (Id.)
True Immigration Reform Bill Halves Legal Immigration
By: Shari Rendall
Last week, Sens. Tom Cotton (R-AR) and David Perdue (R-GA) introduced historic legislation to revamp our immigration system by almost halving the total number of legal immigrants admitted per year within the next decade. The Reforming American Immigration for Strong Employment Act (RAISE Act) takes a crucial first step to move the immigrant selection process to a more merit-based system by ending the current practice of distributing most green cards (Legal Permanent Resident (LPR) status) based on a family relationship rather than on the basis of skills. In a press conference introducing the bill, Sen. Cotton alluded to President Trump’s victory serving as a clear signal that Americans want lawmakers to fix the country’s immigration system saying, “the single issue which he campaigned on above all others and set himself apart was immigration and refocusing our immigration system on working Americans.” (FoxNews, Feb. 8, 2017)
The RAISE Act overhauls the family-based legal immigration system by ending chain migration and limiting family-based green card eligibility to the spouses and minor children (under 21) of U.S. citizens and LPRs. First, the bill amends Immigration and Nationality Act (INA) Section 201 (b)(2)(A) so that only spouses and minor children of U.S. citizens are considered “immediate relatives” who are exempt from the green card cap. (See FAIR Bill Summary, Feb. 2017) Then, the RAISE Act revises INA Section 201(c) to lower the family-based green card cap to 88,000 per year which can only go to the spouses and minor children of LPRs. (Id.) This overhaul eliminates the following categories of chain migration: (1) parents of U.S. citizens; (2) adult siblings of U.S. citizens; (3) unmarried adult children of U.S. citizens; (4) married adult children of U.S. citizens; and (5) unmarried adult children of LPRs. (Id.)
While parents of U.S. citizens are no longer eligible to receive green cards, the RAISE Act does create a new nonimmigrant visa for them so that they can legally live in the country to receive care from their citizen-children. (Id.) This new W visa, which is valid for renewable 5-year periods, prohibits the parents from working in the U.S. and makes them ineligible for federal, state, and local benefits. (Id.) It also requires the U.S. citizen child-sponsor to be responsible to financially support the W visa parents and provide them with health insurance at no cost to the W nonimmigrants. (Id.)
The RAISE Act further brings our immigration system in line with a more merit-based system by eliminating the visa lottery. (Id.; see INA Section 203(c)/Section 201(e)) Under the visa lottery, 55,000 green cards are randomly issued annually regardless of the individuals’ skills and ability to succeed. By eliminating the visa lottery, the RAISE Act recognizes how senseless this practice is.
Finally, the RAISE Act limits the Executive Branch’s power on refugee resettlement. First, it revokes the president’s unilateral authority to annually admit as many refugees as he determines and establishes an annual cap of 50,000 refugee admissions. (See FAIR Bill Summary, Feb. 2017) The bill also rescinds the president’s “emergency designation” power that allows him to exceed the refugee cap for “emergency refugee situations.” (Id.)
If enacted, the RAISE Act would significantly reduce the levels of legal immigration. For over a quarter century, the United States has accepted an average of 1 million immigrants annually. According to Harvard and Princeton professors, the RAISE Act will cut legal immigration 40 percent to approximately 638,000 in the first year and to just below 540,000, a 50 percent cut from current levels, in ten years.. (See Senator Cotton Press Release, Feb. 7, 2017) This level of legal immigration is consistent with the recommendations of the bipartisan Jordan Commission from the 1990s that was endorsed by then-President Bill Clinton. (FAIR’s Jordan Commission Summary)
Praising the bill, FAIR’s President Dan Stein said, “The RAISE Act takes the first crucial steps to reform this antiquated selection process, reduce extended family chain migration, while insuring that nuclear families are kept in-tact. The bill would move the nation toward a healthier skills- and merit-based immigrant selection process. It also recognizes that our current mass immigration policies are out of sync with the needs and realities of the nation, and returns immigration flows to a more traditional level.” (FAIR Press Release, Feb. 7, 2017)
Rep. Lamar Smith (R-TX) is expected to introduce the companion bill soon, titled the “Immigration in the National Interest Act.”
Majority of Voters Back Trump’s Immigration Executive Orders
By: RJ Hauman
A majority of voters back President Donald Trump’s immigration executive orders, a recent survey found. (Morning Consult, Feb. 8, 2017) According to a national Morning Consult/POLITICO survey conducted Feb. 2 through Feb. 4, 55 percent of registered voters said they approve of the temporary travel freeze, while 38 percent disapprove. (Id.) Thirty-five percent of voters strongly approve of the freeze that was first implemented on Jan. 27, but is currently blocked by federal courts. (Id.) The same survey also found similar support for the executive order that called for the revocation of federal funding from sanctuary city jurisdictions. (Id.) Specifically, 55 percent approve of denying federal funds to sanctuary cities, while 33 percent disapprove. (Id.)
State Lawmakers Focus on Defeating Sanctuary Cities
By: State & Local Government Relations
The 2017 Legislative Session is well underway in many states, and lawmakers are following last year’s lead by introducing high numbers of legislation to address sanctuary policies in their states. Sanctuary policies are laws or orders that prohibit or restrict law enforcement from cooperating with federal immigration officials, allowing criminal aliens to live and work freely in communities. State lawmakers amplified the movement to combat these policies after mayors in many of the country’s largest sanctuary cities promised illegal alien residents that city officials will continue to ignore federal law following the election of President Donald Trump. (FAIR Legislative Update, Nov. 22, 2016)
Lawmakers in at least 24 states have responded to the public outcry against sanctuary policies and introduced legislation to eliminate them in their states. Currently, legislation in Arkansas, Kansas, Missouri, Pennsylvania, Texas, and Virginia are gaining the most traction.
- On February 14, the House Education Committee will hold a public hearing on House Bill (HB) 1042, which prohibits taxpayer-funded colleges and universities in the state from instituting sanctuary policies on their campuses. Representative Brandt Smith (R-58) introduced HB 1042 in January.
- On February 14, the Senate City, County, & Local Affairs Committee will hold a public hearing on Senate Bill (SB) 14, which prohibits municipalities in the state from adopting sanctuary policies that would restrict communication or cooperation between local law enforcement and federal officials. Senator Gary Stubblefield (R-6) filed the measure in last December.
- On February 15, the Senate Committee on Federal and State Affairs will hold a hearing on SB 158, which prohibits the adoption of sanctuary policies by state and local agencies. The Committee on Federal and State Affairs sponsored the SB 158, however, the full Senate must approve the measure before it can be sent to the House for consideration.
- On February 9, the Missouri Senate passed SB 2710 to prohibit any government entity, including institutions of higher education, from limiting or restricting the enforcement of immigration law to less than the full extent permitted by federal law. Senator Sean Tindell (R-49) introduced SB 2710 in January. The Missouri House of Representatives must now consider the bill before it can be sent to the governor for approval.
- On February 7, the Pennsylvania Senate passed SB 10 to make sanctuary jurisdictions liable for harm resulting from the jurisdiction’s sanctuary policy and conditions certain state funding on a municipality’s willingness to cooperate with federal immigration officials. Senator Reschenthaler (R-37) introduced the measure in January. The Pennsylvania House of Representatives must now consider the bill before it can be sent to the governor for approval.
- On February 8, the Texas Senate passed SB 4. SB 4, sponsored by Senator Charles Perry (R-28), has taken the lead over a handful of other anti-sanctuary bill as Governor Abbott’s preferred anti-sanctuary bill this session. In addition to prohibiting localities from enacting sanctuary policies, SB 4 requires law enforcement to comply with detainer requests issued by federal immigration officials. The Texas House of Representatives must approve SB 4 before it can be sent to Governor Abbott for signature.
- On February 6, the Senate passed SB 1262 to make sanctuary cities liable for injuries caused by illegal aliens within its jurisdiction. The Virginia House of Delegates must consider the bill before it can be sent to the governor for approval.
- On February 7, the House of Delegates passed HB 2000 to prohibit localities from enacting any ordinance, procedure, or policy that restricts the enforcement of immigration law to any less than the full extent permitted under law. Representative Charles Poindexter (R-9) introduced the measure in January. The Virginia Senate must consider the bill before it can be sent to the governor for approval.
- On January 25, the House passed HB 1468 to prohibit law enforcement from ignoring immigration detainers. Representative Robert Marshall (R-13) introduced the measure in January. The Virginia Senate must consider the bill before it can be sent to the governor for approval.
FAIR encourages its members to contact their lawmakers to stress the importance of enacting anti-sanctuary legislation.