So the courts want to fight the President on immigration policy
So things really blew up overnight, eh? There were all sorts of “spontaneous” protests popping up at airports around the nation in response to the new executive action on immigration and refugees. (If you were watching liberal Twitter you saw how “spontaneous” they really were. This was coordinated nationally.) But of more interest are the actions taken by several judges hearing appeals from some of the travelers who were being detained. In response, one judge in New York imposed a stay on portions of the executive order, while another in Boston attempted to block the entire thing. (NBC News)
A federal judge in New York has granted a stay order on President Donald Trump’s executive order temporarily restricting entry to the U.S. by those from seven predominantly Muslim countries.
The stay blocks the deportation of those who arrived in the U.S. with a valid visa, as well as those from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen who are legally authorized to enter the country. It also protects those with approved refugee applications. They stay does not mean those detained have to be released.
“Stay is granted,” Dale Ho, executive director of the American Civil Liberties Union Voting Rights Project said on Twitter. “Stay is national.”
At least so far, DHS is essentially saying that they will comply with orders regarding specific individuals for the time being, but overall the policy is still in effect.
In a statement issued in the early hours of Sunday, the Department said: “President Trump’s Executive Orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.”
It added that the department will “continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people.”
I have zero doubt that this is going to turn into a mess in the courts. Keep in mind that if you go to the correct areas (such as Boston) you can find a judge to say almost anything, but this will eventually need to be sorted out. That’s going to be an educational experience for plenty of us because many questions regarding immigration policy can be very complicated. We’re dealing with non-citizens in different classifications as well as wrestling with the distinction between deporting people who are in the country versus denying entry to those who are not. And that’s an important point, because non-citizens inside the country, while not having the same level of rights as citizens, still maintain a more powerful position than those on the outside trying to get in. Deporting someone is always much more complicated than simply barring a non-citizen from entering.
For those who have lawful permanent resident status by virtue of holding a green card, they are arguably in the strongest position while they are inside the country. If they travel out of the United States, their status in terms of getting back in (with several important exceptions) is often in pretty good shape also. This falls under what’s referred to as the Fleuti Doctrine, dating back to the 1963 Supreme Court decision in Rosenberg v Fleuti. You can read some good history of the subject from the Catholic Legal Immigration Network here.
The big question being settled there was whether a green card holder with lawful permanent resident status could be denied reentry into the United States after a relatively short, benign trip outside our borders. Mr. Fleuti was found to be “excludable” upon his return from a four hour trip over the border into Mexico, but the Supreme Court eventually sided with him in terms of his ability to return.
Keep in mind that in cases such as that we’re talking bout non-citizens with some of the strongest arguments possible in terms of having a “right” to enter the country. Other forms of documentation – particularly shorter duration programs – provide even less protection. In the end, such non-citizens are truly guests in our country and a guest can be denied entry by the Executive branch of the government fairly easily.
But as I said… it’s complicated and all of this is going to take a while to sort out. I’m sure we’ll all learn quite a bit as this plays out and it’s possible that some new precedents will be set. In the meantime I wouldn’t expect President Trump to suddenly back down and do an about face. It doesn’t seem to be his style and this is simply a case of him fulfilling yet another promise he made on the campaign trail. In fact, first thing this morning he was already doubling down.
As a side note for all of the liberal protesters out there, Indonesia is the nation which is home to the largest Muslim population on the planet. They are not on the prohibited list. There is no #MuslimBan and you should feel rather silly for repeating that.