Executive Power Over Immigration [2017 Annual Texas Chapters Conference]
Articles,  Blog

Executive Power Over Immigration [2017 Annual Texas Chapters Conference]

Good morning, my name is Aaron Streett. I’m
the president of the Houston lawyers chapter, and it’s my privilege to welcome you to the
2017 Texas Chapters Conference. It’s meaningful to host this event in Houston just weeks after
Hurricane Harvey visited disaster on our city. Moving forward with events like this illustrates
Houston’s resilience and reminds us that while we have a lot of work ahead of us, we are
all on the road to full rebuilding and recovery. We are honored this morning to present a distinguished
slate of panels, capped off with a keynote address by Senator John Cornyn. The panels
focus on a debate that is as old as the republic itself, the nature of the executive branch
and the limits on its authority. A principled discussion on federalism and separation of
powers as they relate to the executive branch is as salient today as ever. It’s been often
observed that every four or eight years the party that’s just been ousted from power magically
rediscovers the virtues of the separation of powers-
[laughter] -and federalism. But as Senator Ben Sasse
reminded us at last year’s Barbara Olson Lec- Lecture, it is glorious when we believe in
limited government and restraint when we are the ones in power. Today’s aim is to have
a principled, vigorous discussion of executive branch authority, as well as the limitations
and checks on that authority that should apply regardless of who is in power. To that end,
I call upon our first panel and James Lloyd, a board member of the Houston lawyers chapter,
to introduce our moderator. Good morning. I’m pleased to kick off our
first panel, um, which will explore executive power over immigration. Our moderator is Judge
Jerry Smith of the US Court of Appeals for the Fifth Circuit. Judge Smith began his career
clerking for Judge Hal Woodward of the Northern District of Texas and became a partner with
Fulbright & Jaworski. Judge Smith’s leadership in public service extends across government,
having served senior roles for the city of Houston before his appointment to the federal
bench by President Ronald Reagan. As most in this room would know, Judge Smith is a
leading voice in conservative jurisprudence and has a long history with the Federalist
Society. We are also delighted that uh, FedSoc is a family affair for the Smiths, as Mary
Jane, his wife, and his son Clark have joined us today as well. Um, Judge Smith, thank you
for joining us today. [applause]
Thank you, James. We’re gonna spend um, this first segment on a topic that is completely
non-controversial- [laughter]
-which is the executive power over immigration. We’ll examine questions such as what is the
constitutional and statutory scope of the executive branch’s power in the area of immigration?
How does the executive’s enforcement or lack of enforcement of immigration law impact states
and local cities? This panel is a discussion from the federal and state perspectives on
the current status of executive’s impleme- implementation of immigration law and the
scope of the executive branch’s power and discretion in the area of immigration. The
topics include prosecutorial discretion in the enforcement of immigration law, the executive
statutory and constitutional power to exclude aliens from entry, s- uh, sanctuary cities
and the potential consequences of refusing to cooperate with federal immigration authorities,
and whether statements made on the campaign trail can be used in determining the legality
of an executive order. We have a s- spectacular panel for you h- here today, uh, and I think
you’ll really enjoy their insights. And, it’s a, it’s a varied panel that will give you
all perspectives on this uh, issue. Uh, we’ll be listening to our three panelists uh, um,
uh, each of them uh, going in the order that I’ll present them and then uh, they’ll have
some response to each other. And, we wanna save time for questions, so please think of
some uh, not speeches, but questions at the end, we look forward to it.
[laughter] We looked forward to hearing uh, from you,
as to what you’d like these, uh, panelists to add to what they have already said. We
begin with Allyson Ho. Uh, Allyson is a co-chair of the appellate practice at Morgan Lewis
in Dallas. She’s held senior positions in both the White House and the Department of
Justice. Allyson served as a special assistant to President George W. Bush and counselor
to Attorney General John Ashcroft, overseeing the Justice Department’s homeland security
and immigration enforcement efforts. She previously clerked for Judge uh, Justice Sandra Day O’Connor
and, of course, most importantly, on the Fifth Circuit for Judge Jacques Wiener. We’re also
pleased to uh, welcome uh, Andre Se- Segura. He’s the legal director of the American Civil
Liberties Union of Texas. Uh, Andre has focused his work on the civil rights of immigrant
communities, including challenges to President Trump’s executive orders on immigration. His
practice centers on immigration enforcement by federal, state, and local law enforcement
agencies. Andre is a native of Houston, who’s just returned, in fact, to, to Houston and
was previously a fellow with the ACLU’s Racial Justice Program. He was a litigation fellow
with the ACLU’s Northern California affiliate. And, he was a law clerk to Judge Napoleon
Jones of the US District Court for the Southern District of California. Our third panelist
is Brantley Starr, who’s the deputy first assistant general of Texas. He previously
served as assistant solicitor general under Ted Cruz uh, and under Allyson’s husband Jim
Ho. He practiced commercial and appellate litigation at King & Spalding and was a staff
attorney to Texas Supreme Court Justice Eva Guzman. Brantley began his legal career advising
then-Deputy Attorney General for Legal Counsel Don Willett. He la- later served as briefing
attorney for Justice Willett upon his appointment to the Texas Supreme Court. Brantley returned
to the office of the attorney general in 2015 as deputy attorney general for legal counsel.
So, to begin the discussion, Allyson Ho is gonna lay out for us um, some uh, uh, uh,
some history. Thank you, Judge, Judge Smith, and thank you
for that kind introduction, although Judge, you, you did leave out an, an important uh,
aspect of my biography, and that is that I’m, I’m married uh, as the judge said, to Jim
Ho, who is uh, uh, a Judge Smith law clerk. [laughter]
So, just for, stating that for the record. Um-
[laughter] Um, it’s uh, as, as a, as a fellow, a Hous-
Hous- native Houstonian, um, it’s, it’s a special pleasure uh, for us to be here uh,
with you uh, in Houston this morning at this uh, this time. Um, between 2011 and 2013,
when pressed by immigration advocates to take executive action that would prevent the deportation
of millions here illegally, President Obama repeatedly said that taking such action would
be outside his executive authority as president. This statement from 2013 is typical. “The
problem is that, you know, I’m the president of the United States, I’m not the emperor
of the United States. My job is to execute laws that are passed, and Congress right now
has not changed what I consider to be a broken immigration system. And, what that means is
that we have certain obligations to enforce the laws that are in place, even if we think
that in many cases the results may be tragic.” Nonetheless, in November of 2014, after failing
to achieve the passage of legislation that would’ve enacted his administrations preferred
policies, President Obama took the executive action that he himself had repeatedly declared
beyond his authority, saying, “To the me- to those members of Congress who question
my authority to make our immigration system work better or question the wisdom of me acting
where Congress has failed, I have one answer. Pass a bill.” President Obama said, “I want
to work with both parties to pass a more permanent legislative solution. And, the day that I
sign that bill into law, the actions I take will no longer be necessary.” Even Saturday
Night Live recognized uh, the issue of executive overreach here, um, spoofing it in a schoolhouse
rock skit aired within days of the announcement of uh, the executive action. Skit featured
cast members dressed as an immigration bill one side and the executive order on the other,
with a naïve student asking the order, “Wait a second, don’t you have to go through Congress
at some point?” And, the chain-smoking order responding, “Aw, that’s adorable. You still
think that’s how government works.” [laughter]
Well, yes, it is. Article I, Section 8 of the Constitution gives Congress authority
to establish a uniform rule of naturalization. In INS v. Chada, the Supreme Court made clear
that the plenary authority of Congress over aliens under Article I, Section 8, Clause
4 is not open to question. That principle was reaffirmed more recently in Arizona v.
United States, when the court held that Congress could trump state laws dealing with illegal
aliens through the preemption doctrine, but competing executive branch enforcement priorities
could not. The president’s constitutional duty to enforce the laws, referenced by President
Obama in the 2011 quote with which I began derives from Article II, Section 3, which
states that the president shall take care that the laws be faithfully executed. This
is imperative language. It instructs that the president shall take care. His duty is
to execute the laws. Not some of the laws, but all of the laws. And, he has to faithfully
execute those laws. President Obama justified his own executive action on immigration by
referencing prosecutorial discretion, citing a memorandum from the Department of Justice’s
Office of Legal Counsel, and I know my fellow panelists will be talking a little bit more
about this uh, in detail so I don’t wanna spend too much time on that at this point,
but I think it’s interesting to point out that the OLC memorandum, upon which President
Obama relied, um, provides that, “An agency’s enforcement decisions should be consonant
with rather than contrary to the congressional policy underlying the statutes the agency
is charged with administering,” and that admin- immigration officials cannot abdicate their
statutory responsibilities under the guise of exercising enforcement discretion. I think
former uh, Immigration and Naturalization Service Commissioner Doris Meissner, who served
under President Bill Clinton, um, once stated, she put it this way, she said prosecutorial
discretion should not become “an invitation to violate or ignore the law.” Instead, prosecutorial
discretion with respect to an executive enforcement deci- duties is based on equitable considerations,
in an individual case or a small set of cases. It’s not a license for the executive to seize
congressional prerogatives. Yet, in fairness, for decades, Congress has delegated a great
deal of its own immigration authority to the executive branch in sweeping grants of power,
I think arguably more than in uh, any area of the law. To give you a few examples, Congress
has delegated the power to the executive branch to determine whether foreigners should be
granted temporary protected status, whether a person is allowed to work in the United
States, whether to grant a person permission to be in the United States when the person
doesn’t qualify for a visa, and whether a person’s deportation should be deferred. As
a result, the executive branch today enjoys expansive power over immigration as a result
of the del- delegation of congressional power over immigration. Especially relevant to today’s
uh, discussion is a 1952 law, 8 USC Section 1182F, that gives the president what one scholar
has called capacious authority to deny entry to any alien or class of aliens whom the president
deems detrimental to US interests. Again, I know my fellow panelists will be uh, discussing
this in greater, greater detail. I think it’s enough for now, perhaps, just to read the
statute in full. It says, “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 non-immigrants or impose
on the entry of aliens any restrictions he may deem to be appropriate.” Capacious, indeed.
Today’s discussion of executive authority and immigration raises issues not only of
separation of powers but also of federalism. As an empirical matter, the costs and burdens
of illegal immigration do not fall evenly on federal, state, and local governments.
So, if the executive fails to take care that the laws be faithfully executed or if Congress
fails to sufficiently fund enforcement efforts, then the brunt of it is borne by states and
locals. That reality has led to a series of clashes between states and the executive branch,
including the Arizona Supreme Court case I referenced earlier, over efforts by states
unsatisfied with the executive’s enforcement efforts on one hand and also efforts by the
executive unsatisfied with city’s refusal to cooperate with federal enforcement efforts
on the other. So, immigration is not only an exceedingly complex policy matter, but
it also implicates two foundational principles of our republic, separation of powers and
federalism. And, I look forward to my federal panelist discussion of how these principles
are playing out in current cases and controversies. Okay. Andre Segura?
Oh, great. [laughter]
I thought, I thought Brantley was up first. [laughter]
You wanna go first? [crosstalk 00:16:19] I’m fine going next.
Oh, it’s um, whichever you prefer. Paper, rock, scissors?
[laughter] That, that’s fine.
Brant- Brantley, why don’t you go, why don’t you go ahead?
[laughter] That’s why you’re the judge.
[laughter] I appreciate that.
So- Okay, so Brantley Starr, attorney general’s
office. Um, I’m here to share some state perspective on these issues that Allyson very um, aptly
laid out. And, by state perspective, I mean Texas perspective. Because I’m not here to
share um, what the views of the New York attorney general’s office might be.
[laughter] I, I do have to stay that uh, instead of um,
articulating legal principles, what I’d like to do is walk through about three cases with
you that, that lay out these principles and we can see them in action and give you the
flavor of um, the view that the state of Texas has towards e- each of these cases and the
principles that they stand for. The first is the travel ban case. And, Allyson brought
this up earlier. We have, we have the statute in the INA that basically allows the president
to pause entry into the country from a class of aliens if he finds that it’s detrimental
to the interest of the US to allow them to be here. We know that the president had made
campaign trail statements that he believed that the vetting process was insufficient.
And, we know that that’s one of the few specific issues that he and Jim Comey agreed on. And
then, he became president, and shortly thereafter signed an executive order that paused travel
into the country or ban to travel, depending on which moniker you would use. And, and,
the second iteration of that executive order banned travel from six different countries
for 90 days. And, that list of six different countries came not from the Trump Administration,
but came from the Obama Administration and Congress. Those were the national security
concern countries of interest. And, in addition to that travel ban, there was also a refugee
pause as well, for 120 days, to enable the executive to examine its vetting procedures
for refugees to ensure that refugees coming here weren’t going to be detrimental to the
interest of the US. And so, those were the two main components of the executive over
that composed the travel ban. The president obviously cited his justification as that
provision in the INA, saying it’s up to the president, if he finds it’s detrimental to
the US, to pause travel. Other presidents before him in- invoked that authority and
used it as well. He was sued. And, we all know that the Ninth Circuit and the Fourth
Circuit issued complete injunctions against the executive order. And so, I’d like to walk
through, just briefly, what the basis for their injunctions were, and then go through
what the Supreme Court acted on and where we can see that case going here in October.
So, what a Fourth Circuit held was that there was essentially a constitutional limit on
this executive order, that the president was acting with animus. That he was more concerned
about animus against Muslims than he was about protecting national security. And that, because
of that, his actions violated the due process clause and the equal protection clause. But,
it’s interesting. In, in these cases involving animus, we have this outer principle from
the Supreme Court’s case in McCreary that notes that courts aren’t lightly to psychoanalyze
our drafter’s hearts. And so, as a result, when you have a facially neutral law or executive
order like we had here, then it requires the clearest proof that there was pretext, that
when the drafter was doing what they did, that the words they were choosing were simply
pretext for the animus that was in their heart. Again, here, this was a facially neutral order,
that ride, because we, we didn’t see discrimination that said Muslims can’t come into the country.
That, that was not the list that he used, he used a list from the former administration
and from Congress. And so, as a result of that facially neutral executive order, there
needs to be the clearest proof of pretext, and we simply didn’t think from the record
that they had met that burden. Um, the key rationale from the Ninth Circuit was in a
different place. It wasn’t based on animus, but instead it was a belief that the president
hadn’t actually met his burden under the INA of a sufficient discreet showing of how the
US would have its interests acted upon were these individuals allowed to travel to the
United States. So, it was a statutory argument. The problem is, if we go back to our con law
one textbooks, we all know Youngstown Sheet & Tube. And, the principle from Youngstown
was, if Congress has authority in an area and they cede it all to the executive, as
Allyson mentioned they did with this particular provision of the INA, then the president is
acting with all the power of the political branches of government. And, it’s an exceedingly
difficult thing to invalidate that type of presidential action. There was another basis
that I wanna bring up just briefly, that the Ninth Circuit and the Fourth Circuit relied
on, and it’s procedural due process. There is a question that all of us have in our minds,
which is how far does the Constitution extend? Does it extend overseas? Does it extend to
aliens seeking entry into the country? And, essentially, the Ninth and Fourth Circuits
were, were adhering to at least some form of this principle that it would extend to
aliens seeking entry into the country who had not yet been here. Uh, we filed an amicus
brief in this case in the US Supreme Court. Originally, when Scott drafted it, we were
on our own, and then there were 16 states that eventually saw the light and joined it.
And, that amicus brief argued that eh, eh, under Supreme Court jurisprudence, you simply
can’t extended the Constitution that far, to someone who is an alien who has not yet
been admitted into the country. The Constitution would be stretched to the breaking point and
wouldn’t know a limit if it was extended that far. The fallback position that we articulated
was, at a minimum, the non-residents must have sufficient contacts with the United States
for any sort of constitutional notion to kick in. And, that’s actually where the Supreme
Court acted. Uh, we saw in June, right before they left town for their July recess, they
issued a stay of the Ninth Circuit and the Fourth Circuit injunctions. And, the stay
doesn’t fully explain why the court was doing what it was doing. But, what the court did
was, it said that there has to be a bona fide connection between the non-resident seeking
entry and the United States, either an individual or an entity in the United States, in order
for the travel ban to not apply. In other words, only those individuals with a bona
fide connection could come here, otherwise the travel ban applies. Now, when we talk
about a connection to an individual, they cited examples um, as if it were a wife or
a mother-in-law. A mother-in-law, really, as a matter of law, a mother-in-law is a bona
fide connection. I think that’s a prime example of when you would use a case-by-case analysis,
but for- [laughter]
-for entities, attaching to an entity that it mentioned is like a student seeking admission
to a university. So, those are the type of connections that the court is talking about.
Um, now, there was a concurrence in dissent from Justices Thomas, Alito, Gorsuch, and
they raised two points that I think are worth reiterating here. And, the first point is
that if you take one of these cases where an individual with a bona fide connection
had sued and you have a preliminary injunction that extrapolates that to everyone who’s similarly
situated, then you just instantly transformed what’s not a class action into a class action.
Number one. And then number two, if you have a line like a bona fide relationship, how
do you patrol that? And, it’s going to be patrolled by the two district courts who created
injunctions that all nine Justices thought were incredibly overboard. And, that second
point has proven true already because Justice Kennedy already had to issue another stay
in the case involving um, refugees covered by formal assurance. Not sure what that means.
I’m sure further litigation will spawn over that. But, the court’s going to hear oral
argument in October and hopefully we’ll get an understanding for why the court was drawing
the line that it did in the state posture, and it could draw a different line if it wanted
to. But, I would say that the travel ban case really does stand for the proposition that
we heard from Allyson, that if Congress grants its authority in the area to the president,
then this is Youngstown zone one and the president is acting at his apex. The second set of cases,
sanctuary cities, now you are probably in this room more familiar with the Texas sanctuary
cities case than the others that are around the nation, but because Andre and I are litigation
right uh, right now on that and it’s in the Fifth Circuit, we’re going to pause discussion
on that. [laughter]
It would be rather awkward. Uh, we would each be trying to convince someone else at the
table that we’re right. And uh- [laughter]
-instead we’ll, we will focus on um, the cases that you’ve probably seen from San Francisco,
from Chicago on the executive order on sanctuary cities. And, that gets more into the heart
of presidential power. Uh, so, the executive order um, a- as background, there’s a Section
1373 in federal law that basically says that state and local governments aren’t supposed
to inhibit the flow of communication to ICE regarding immigration. And so, if I’m the
Harris County sheriff, I’m not supposed to tell my deputies, “Don’t call ICE with immigration
status information. If you stop someone, you find out they’re here illegally, don’t call
ICE.” Section 1373 is designed to prohibit that. So, the president issued an executive
order, saying that based on Section 1373, if there’s a local entity that’s not complying,
then the federal government is supposed to withhold grant funding to that local sanctuary
jurisdiction, “except as mandated by law.” As a result, San Francisco was one of the
first to sue. And, there were three different local governments in that suit, all of which
had these sanctuary policies that we know would violate 1373 because they inhibit that
flow of communication. But, in this case, there is a procedural and a substantive aspect
that I wanna unpack just a little bit. Because, the procedural aspect flavors and clouds the
whole case. Procedurally, the Department of Justice came in and said that it wasn’t interpreting
the executive order to apply to all federal grants, but simply interpreting that executive
order to apply to three total federal grants, all of which already had compliance with Section
1373 baked into it, into the grant contract between the feds and the locals. The court
did not adopt that narrow infrastructure. It did not take the enforcer of the law at
it its word. And so, a- as a result, it went through a cascading series of constitutional
analyses that I wanna go through because I think it has really significant import for
how the case should go forward. But, it’s difficult to understand how this case will
go through, knowing that this lawsuit was in a pre-enforcement facial posture. And,
based on that posture, we know that if there is one circumstance in which this executive
order could apply constitutionally, then it should survive that challenge. And so, that
ruling that the enforcer of the law, their interpretation of how they will enforce the
law doesn’t hold, to me is irreconcilable with the posture that the case was made. If
you get past DOJ’s narrowing argument, there are some really weighty constitutional issues
here that I think San Francisco could be right on, depending on what the record reflects.
The first one is the principle that it’s up to Congress, not the executive branch, to
attach strings on federal dollars going to the states. That’s a Tenth Amendment in spending
clause principle that, that was perhaps made most clear in an Alito opinion from 2006,
Arlington Central School Board v. Murphy, that we might’ve sued the federal government
on five or six times uh, i- in the last couple of years. It’s a principle that, that’s really
significant because essentially we know that if there’s any federal appropriations bill
other than Obamacare, it has to originate in the House.
[laughter] And, and as a result of that, these appropriations
are essentially contracts between Congress and the state or local government that is
receiving this funding. And so, it’s not up to the executive to intervene and say, well,
Congress imposed five restrictions, but we’ve got about 20 more that we’re going to pose
on state and local governments. It, it’s a contract between Congress and the states or
locals. And so, we need to understand this case, if the record really does reflect was
this truly the Obama Administration adding these strings in 2016 o- or was this inherently
something that Congress itself did? But, there could be serious concern for the executive
if the Obama Administra- Administration itself added these restrictions. A second principle
here at play is that these restrictions actually have to be unambiguous. It’s related to the
first notion that Congress has to make it up, but if Congress creates this restriction,
just as Alito said in Arlington Central, it’s gotta be clear and unambiguous so that the
state knows what they’re accepting, or the local knows what they are accepting. So no,
there’s no such thing as agency difference when it comes to this Tenth Amendment principle.
It doesn’t exist. A third requirement is that there’s got to be a nexus between the restriction
and the purpose of the grant funding. And so, i- if the feds are doling out highway
money, then they can condition that on your drinking age being 21, but they can’t condition
it on you ha- having some sort of nondiscrimination policy for how you hire all of your state
employees. That’s not irrelevant enough. And then, we know from NFIB v. Sebelious that
it can’t be coercive. That restriction can’t be a gun to the state or local governments
here. So, I do think that once we get past this posture and understand truly uh, what
is being argued in the case, there are meaningful restrictions on the executive’s power from
the sanctuary city’s executive order cases. Uh, and then the last cases I wanna talk about
are DAPA and DACA. And, this is what Allyson alluded to earlier with President Obama’s
comments on, “I’m not the emperor. I can’t just change the law.” Uh, as background, we
know in 2012 that the president did implement the DACA memo. And, that was essentially granting
lawful presence status to applicants, child, child applicants who met all the criteria
that the administration set out. In 2016, uh, 2014, sorry, that got expanded. Expanded
DACA, and we saw DAPA as well. And, that DAPA is where Texas led a 2016 coalition, who sued
before DAPA was ever implemented. There was a preliminary injunction um, a- and that lawsuit
that brought about the preliminary injunction had two counts to it. One was an administrative
procedure at count, and everyone’s eyes just glazed over instantly when I said that, I
could see it. Uh, and so, that was on notice and comment. Right? And so, I, I won’t bore
you with that, but the essence was that the DAPA memo was a rule and uh, rules have to
go through notice and comment rulemaking to be valid under the APA. Uh, but the second
count was perhaps the more interesting one, even though the courts never really addressed
it. The injunction was on the APA claim, it was affirmed by the Fifth Circuit on that
APA claim, and then an evenly divided US Supreme Court affirmed the judgment below. And so,
we only saw discussion of the APA claim. We didn’t see discussion of the take care clause
claim. And, that was the point that Allyson mentioned earlier. We’ve got the constitutional
requirement that the present, president take care to faithfully execute the laws of the
United States. DAPA simply was an inversion of that. And, as I talked to a number of people,
and even a number of Texas appellate justices, none of which are in this room, it’s only
the justices who are not in this room, I often heard um, the view of the case as being only
about prosecutorial discretion, and that the view was it’s a very close call because, can
you have prosecutorial discretion category by category instead of case by case? And,
that is a fascinating question. But to me, the more interesting aspect of this take care
clause debate, uh, lies not in prosecutorial discretion, but the point that Allyson mentioned
earlier on can you invert the law? Can you rewrite the law? And, when we look at DAPA
we know that’s exactly what was going on. In the INA, which is pursuant to Congress’s
plenary authority, they were saying that there’s a class of individuals who are not lawfully
present and are therefore removable. And then, the president came in and said, “Well, here’s
a broad subset of that category of individuals who Congress says are not lawfully present,
but I am now going to deem lawfully present.” And gave them rights and privileges. That’s
simply an inversion of the law. And, we know that that cannot stand under any view of the
take care clause or schoolhouse rock bill becomes a law, which is how I teach my children
separation of powers. [laughter]
So, I would submit to you that what we can learn from these three cases is that there
are, that there are good indications of what power the president has and what power the
president doesn’t. And so, under travel ban, we know that because Congress has granted
their authority to the president, he had the ability to pause entry if he deems it detrimental
to the interest of the US not to do so. We know from the sanctuary cities executive order
that the president himself can’t attach strings Congress chose not to attach on federal funds
that flow to the states, and then from the DAPA and DACA situations that we know that
the president simply can’t rewrite the INA. All right, Andre if you, i- if there is anything
that you might disagree with in what you’ve heard-
[laughter] -you can, you, you can have as much time as
you need to review. [laughter]
I, I was just telling Allyson that it seems like I was writing a rebuttal to Brantley
while, while he was speaking. [laughter]
Uh, but thank you all for inviting me uh, here to speak. Uh, this is obviously not um,
the ACLU’s usual crowd, but- [laughter]
-we, you know, we are with, we are in these debates um, obviously with, with the state
of Texas, the federal government, um, and I do think that there are points that we can
agree on and there are points that we will likely always, always disagree on. Um, so,
you know, I just wanna start uh, by, you know, without any, without any judgment, I, I think
this, this administration, I would not say personally came in with uh, v- uh, uh, a lot
of very clear, concrete goals, but I think one area in which there, there are concrete
goals in this administration is in immigration enforcement. Um, President Trump, from the
beginning of his administration and his campaign statements um, and his um, his nomination
of Attorney General Sessions made very clear that he wanted to further restrict immigration
and increase immigration enforcement efforts. So, shortly after uh, the inauguration, he
uh, issued several executive orders, um, one of which uh, Brantley was, two of which Brantley
uh, was, was speaking about. Um, the first one that he issued was on interior enforcement.
So, this is where the Obama, the uh, Trump Administration set out to, to increase enforcement
and the number of deportations per year. And, he, he wanted to do that in a variety of different
ways. One way that was very uh, specific was to have 10,000 more uh, interior immigration
enforcement agents, ICE agents. And, in a similar uh, border security executive order,
he called for 5,000 more uh, border uh, the CVP officials. So, very clear from the beginning
what, what the president wanted to do on, on immigration. And then, shortly thereafter
he issued the, the infamous or famous uh, however you wanna it, Muslim ban uh, for the
first time, which was then subta- subsequently amended uh, a few months after that, following
litigation um, from the ACLU and, and from others. So, I, I think there are, just to
g- talk about some of the things that we are in agreement, and I think it’s all about the
degree. And, you know, I think, naturally the degree changes based on administration
often. So, I think, you know, we agree that um, Congress sets immigration law policy.
The executive generally is charged with enforcing that. Those are general principles that we
agree on. The states can cooperate in immigration enforcement under two, two certain extents.
And, I think those are the broad outlines, and I think within that there are millions
of pages of legal documents debating what any of that means. Um, and I think that’s
where we are on all of these cases, including the case that, that Brantley and I are, are
currently litigating here. So, I wanna start the conversation here in Texas, naturally,
with uh, talking about California. Um- [laughter]
-which I’m sure will, will, will go over great. But, this is the case that, that Brantley
was talking. Uh, it’s the, you know, I refer to it more of the Santa Clara case, but it’s
the San Francisco-Santa Clara case in which they uh, sued uh, the federal government to,
to block enforcement of the interior enforcement executive order. And so, uh, this interior
executive order sought to essentially punish what it uh, called sanctuary cities or sanctuary
jurisdictions within the executive order. There is no uh, definition, either in that
executive order, in any law, or in any text about what exactly is a sanctuary jurisdiction.
Uh, historically, that takes on a lot of different forms. Um, some jurisdictions decide here
are places in which we are gonna cooperate with immigration enforcement. Some jurisdictions
decide we’re not gonna do any. Um, but fairly universally, all jurisdictions comply with
the one thing that they absolutely cannot uh, do, and that’s to prohibit what Brantley
said, information sharing of, specifically, immigration status under uh, 8 USC 1373. So,
that is the specific thing that Congress had said, that no state or local jurisdiction
can prevent their officials from communicating with the federal government just about immigration
status. Uh, and so, almost universally, I’m sure there are exceptions, but most jurisdictions
do comply with that. Now, this executive order, uh, Santa Clara and San Francisco, and we
also brought um, uh, we moved to intervene in that case as well, but we argued that uh,
that n- executive order was extremely overly broad, was, was vague, uh, and as Brantley
said, intruded on a lot of separation of powers, Tenth Amendment co- coercion issues, and spending,
spending clause issues. Um, now, I think, there are a few i- issues at play um, in that
case. And, I think we have to remember this was a um, challenge to the executive order
prior to it actually being enforced. And, I think that’s what Brantley was, was hitting
on, sort of like, where, where we are in this case and how a judge is supposed to look at
it. And so, one of the main issues that the judge has to look at is the potential for
harm uh, to the plaintiff if the challenged action is allowed to take effect. So, Santa
Clara and San Francisco both received, Santa Clara received I think $1.7 billion from the
federal government in a variety of different funding streams and grants. And, they said
under this executive order, which does not specify which grants or which funds are at
issue, that they risk for the next year all of that funding. And so, they need to know
exactly what it means. And so, what they’re looking for is they, they’re rushing into
court to get a preliminary injunction if, to, to, so that it, that can be blocked while
it’s determined exactly what that means. So, I don’t think that it’s as simple as, you
know, taking the executive uh, at its word, taking the agencies that are meant to prosecute
at its word because there are significant, real money and the table. And I, you know,
everyone wants to know what’s at issue. So yes, the federal government came in and said
the only thing that’s at issue here, in this interior executive order, are funds tied to,
grants tied to 1373. So, there are a few grants that are issued by the federal government
to s- to state and local um, law enforcement agencies primarily, that have to comply, you
have to have a statement that say you comply with information sharing on immigration status
to the federal government. Uh, and that is, you know, not controversial. And, some jurisdictions,
including Santa Clara, said, “We’ve made some limitations on that out of our public safety
and public policy.” I think they do not share information when it’s victims of crimes, uh,
for victims of crimes. And, you know, they said, you know, “We’ve made some determination
on a public level that we’re not gonna share all information.” Um, but, nevertheless, the
government said this is where it’s limited. That is not written anywhere into the executive
order. It says federal funds generally, and it says for those that, I can’t remember the,
the exact language of the, of the executive order, but it’s something like, seeks to limit
the enforcement of federal immigration law. So, it’s, it is very, very broad. Um, and
the, you know, the counties argued that they themselves have their own, sort of, separations
of powers reason and public policy, local public policy reason uh, for not engaging
in, in immigration enforcement, that they reflect local de- determinations of the best
way to promote public safety. Um, and so a judge in San Francisco issued an injunction
against, against the executive order um, on a variety of um, on a variety of grounds,
including separation of powers, um, including that if Congress in, in setting up these grants,
in setting up 1373, has not given the president discretion on how to execute, how to take
care that the laws are faithfully executed. The, the president can’t then have the discretion
to change the conditions of the funding mid-stream. That, that’s just, that, the court found was,
would not be faithfully executing congressional law. And, as um, Brantley was talking about
the spending clause test, the court found that this would be eh, coercive because of
the amount of money at issue. It would basically require the state or local jurisdictions to
take on a federal agency program, regulat- regulatory system, I believe it would’ve said.
And then, and the, the standard is that it cannot be a, an, effectively a gun to the
head of the s- of the local jurisdiction. And, and also that this would violate the
Tenth Amendment as a um, a coercive measure, effectively compelling the states to enact
of federal program. So, the judges put a stop to the executive order for now. I believe
it was just appealed a few weeks ago. Um, so there, I’m sure there will be much more
on that topic. Um, the, the second issue is uh, obviously one on everyone’s radar, is
the Muslim ban issue that’s um, heading to the Supreme Court to be argued on October
10. Our, our legal director David Cole will be presenting arguments um, for our plaintiffs,
which come out of the Fourth Circuit decision and uh, Neal Katyal will be presenting arguments
for uh, the state of Hawaii, which worked its way through the Ninth Circuit um, on October
10. So, it’ll be very interesting, if in fact it actually does go forward. There um, as
you may have seen in the news yesterday, the administration is planning to release a new
ma- ban or stop, or whatever we, we’ll see what we end up calling it, and it obviate
um, the need for argument on October 10, and obviously that will be up to, to the Supreme
Court as to whether to actually continue to hear the argument and to resolve any issues
that may, that may still be at play. But, I’m sure we’ll find out soon since it’s only
um, a few weeks away. So, you know, I think there, there is obviously a lot of controversy,
of controversy around, around the Muslim ban. Um, I don’t think that there’s much disagreement
with how the first ban was ruled out and the haste in which it was ruled out. It caused,
as you all saw on the news, airports across the country and across the world, chaos. Um,
people didn’t know what the rules were, um, a- DHS agents stationed at airports didn’t
know how to actually implement the ban that was issued just uh, a day before. And, I myself
was, was at JFK Airport, when I uh, lived in, in New York, trying to figure out what
was going on, um, at the same time that uh, my colleagues were in court in the Eastern
District of New York asking for the executive order to be blocked uh, while they can actually
figure out what’s going on. And, in fact, on that Saturday night, I received a call
from my colleague that in fact the judge had issued a stay of the order, and then at that
point, it was to figure out how to actually implement that stay of the order on a Saturday
night um, when most people aren’t in their offices and it’s hard to reach people. Um,
so, it was, it was chaotic throughout, throughout the country. Um, and, you know, I think, like
I said, i- the, you know, President Trump was very clear throughout his campaign, and
has been clear on issues of, of immigration, and he said um, you know, from the beginning,
he made very clear statements about his intent once taking office and has not since ever
taken back those statements, clarified those statements, narrowed those statements and
has, has in fact um, on his very active Twitter account, doubled down on many of the statements,
probably um, um, probably to the frustration of his attorneys, but obviously I wouldn’t
know that, but as an attorney, if my client were on Twitter talking about cases that I
was litigating on, on his or her behalf, I don’t think that I would, that any of us would
be happy about [laughs] that. Um, so, I think we can probably also agree that clients shouldn’t
tweet about their um- [laughter]
-thoughts about cases and their, and their reasons for, for doing certain things that
you’re, that you’re currently litigating. Um, but, he made very clear statements about
a total and clear shutdown of, of Muslim im- immigration. He made statements about Islam
and Islam hating us. And, this is what um, the court, particularly in the Fourth Circuit,
relied on in determining that this was a violation of, of the establishment clause, in that you
can look beyond simply the, the four corners of the page. The court found that you can
take in, take in these statements in certain circumstances, and I think we probably disagree
on what circumstances or whether you can do that at all, um, but just to clarify, the
first ban did have um, s- specifically some statements that were not facially neutral.
There was an exception for minority Christian religions uh, within the first ban, which
courts addressing that first ban throughout the country hung their hat on and saying,
you know, this, this demonstrates that, you, you know, the, the, the law is not, the law
is not facially neutral and it’s, it, there’s no, you know, bona fide entrance. And so,
I don’t think that we’re, I think just simply saying psychoanalyzing um, you know, might
be a bit of an overstatement. There are uh, clear statements that the president has made
um, a- about the ban, about how it was rolled out, and actually what he intended to roll
out. So, I don’t think that we need, we’re uh, imagining what the president might’ve
been thinking um, you know, for better or for worse, depending on which side you’re
on. He, he makes fairly clear how he was thinking um, through a variety of different, through
a variety of different mean. So, you know, I think there is some uh, there is some conflict
between the president’s, the view of the president’s authority when we’re talking about the Muslim
ban and the view of the president’s authority uh, when you’re talking about a case like,
like DAPA, or maybe we’ll be uh, talking about DACA soon, which may als- which will be litigated.
Um, for, guaranteed there will be a lot of cases about the uh, rescission of the DACA
program. And, I think, you know, on the one end, folks say, well, in the context of, of
entry, the president has carte blanche. The president can do whatever he wants on um,
on the entry of certain immigrants. And then, on the prosecutorial discretion side, you’re
saying, no, no, no, everything has to be indi- individual, case by case. And, I think there
is some conflict between those, those two positions. In the Muslim ban case, the federal
government is effectively relying entirely on 1182F, where the president is given the
authority to make individual determinations about whether the entry of an individual would
be detrimental to the national security interests of, of the United States. So, we argue that
that needs to be made on an individual basis with actual information about that. Uh, here,
the ban affects 180 million people from six countries without any individualized determination.
So, the grandmother from uh, from one of those countries has not been individually determined
by the executive or by the attorney general to present that sort of risk. And so, I think
what that view of 1182, in our view, then overrides a lot of congressional programs
and congressional uh, established procedures on how to grant visas and how to grant entry
of individuals. And so, the president is basically taking that and can bas- do whatever he uh,
wants to do in that area, and we argue that that is uh, far beyond the reach of what a
president should be allowed to do. Um, there is another provision that is at play that
was passed a- in fact after 1182F, which is that um, there can be no discrimination on
the basis of nationality in t- on the entry to, to the country uh, and the issuance of
visas. And so, that’s another issue that is, that is at play and that courts have, have
relied on in the Muslim ban. Um, and so, lastly, and likely the least controversial of all,
but DAPA uh, for, for [laughs] the state of Texas, um, I mean, o- you know, obviously
um, you know, I would n- never suggest that there are, that i- i- i- the DAPA question
and, and granting um, i- discretion to a large number of people would not have been a controversial
move. Um, you know, I can understand and see the arguments on both sides, um, but I d-
I don’t think that this is as extreme as people make it out to be. Um, so, the federal government,
just to be clear, has never been able t- to remove um, more than about 4% of the undocumented
population in the country per year. And, this is, this is just a matter of practicality.
There is no way to, to remove the 11 million or so individuals in any speedy manner. They,
these people, you know, are everywhere and that would be an impracticality. So, I think
we need to understand that that’s just, there’s no way that the executive, in trying to enforce
the laws that Congress has established, can simply do it all at once. And so, our argument,
and the Obama Administration’s argument was that the federal government can take, can
prioritize removal of certain individuals. Um, and in doing so, uh, has the authority
to pass programs such as DACA, or to, to uh, to uh, pass guidance such as DACA or DAPA
uh, in order to, in order to establish those priorities. And, you know, one of the principle
cases, um, which runs through basically all of these, all of these uh, cases is Arizona
v. United States, and, and, there, the majority said the principle future of the removal s-
system is the broad discretion authorized by immigration officials in uh, the removal
process. And so, one thing that, you know, we wanted to discuss here is what does taking
care, what does the take care clause mean? What does it mean to take care that the laws
are actually faithfully executed? And, it’s about a constitutional obligation. It’s about
the president fulfilling his constitutional obligation to carry out uh, in, in the immigration
field, uh, the wishes of, the wishes of Congress. And, to be clear, Obama carried out a lot
of that during his eight years and we sued the Obama Administration a lot about the way
that he actually enforced immigration law. Um, so, I think there is, you know, there’s
some um, you know, sometimes they’re uh, uh, “Where was the ACLU during the Obama Administration?”
We were suing the Obama Administration for their own immigration enforcement efforts
as well. And, immigra- eh, y- Obama, you know, every year was uh, arrested and removed hundreds
of thousands of people. So, I think to say that he was not taking care, that he was not
fulfilling his constitutional obligations, um, I think is eh, i- is an overstatement.
And, you know, there has been a history, and I’m sure Allyson could speak to it, but there
has been a history of presidents, presidential administration, since the 1960s, and in particular
over the past 40 years, of using deferred action um, for individuals and for groups
of people. And so, just to be clear, because, you know, well, what does deferred action
mean? What does it actually um, stand for? But, it’s basically just replacing that person.
That person is removable for a variety of re- they don’t have lawful status, they’re,
they overstayed their visa, they entered un- unlawfully at some point in time in the past.
That person is removable. But, deferred action is basically deferring the action. You’re
not saying that that person has lawful status, um, which can include a variety of different
things, including lawful permanent residency, which literally means you can, you’re allowed
to stay forever, permanently. And, uh, and, it can mean a bunch of different things, but
what it doesn’t mean is that you are always removable. And, someone who is under DACA
or who, who would’ve been under DAPA e- is at all times, even while they’re granted um,
that classification, they are removable. Um, and that’s at the discretion of, of the executive.
And, you know, president Reagan um, used deferred action for not just individuals but for classes
of individuals. That was later on carried on by um, George H. W. Bush, and then later
on um, by George W. Bush, and presidents since. And so, you know, I think obviously um, uh,
opinions can change based on who, who is in power. Um, that is natural in our democracy,
for us to not be um, content with how certain administrations or certain sides are using
this, um, but I think we, we do need to recognize that Obama was not the first one to make up
um, the idea that he was going to grant deferred action for some subset of individuals. He,
this was not his, you know, brilliant idea that he just came up with and, and, and ran
off with. This was something that other, that other presidents have, have done. So, um,
just, that’s more or less what I have to say on those, on those three cases. On DACA, what
I think we’re gonna see coming up is, and y- uh, challenges to the rescission of, of
DACA. And, you know, we could probably have a whole conversation about the legal issues
that play in that rescission, um, but there, but there certainly will be uh, an APA claim
on the rescission and, you know, I think that there will, there will likely be an equal
protection claim based on discriminatory motive similar to in the Muslim ban case. So, that’s
all getting started. I’m sure we’ll all, all be aware of that and we’ll all be watching
closely what happens on the Muslim ban litigation coming up in a, in a few weeks in the Supreme
Court. So, thank you all. Okay, thank you. Those were excellent uh,
opening uh, remarks by each of the panelists and I’d like to invite uh, a- uh, any of,
of the three of you to uh, make any kind of response or rebuttal, or if there’s anything
else that you’ve thought of that you’d like to add, and then after that uh, we’ll be glad
to open the floor to some, to some questions. So, Allyson, anything that you wanted to follow
up with? Um, just, just a couple of points. I’d, I’d
like to begin, since there are cameras here, to give Brantley the opportunity to clarify
his remark about mother-in-laws and case-by-case. [laughter]
That, of course, your mother-in-law would- [laughter]
-would, you know, sail by. Right? We have a bona fide relationship, but-
[laughter] -fortunately, she’s also not techy savvy.
So, she will never see a- [laughter]
-[crosstalk 00:58:00] speech. Just, just wanted to uh, give you that opportunity
to- I appreciate that.
-to clarify uh, to clarify those um, uh, eh, eh, those, those comments. And, you know,
I, I, I t- take Andre’s point about, you know, President Obama not being the first um, to,
to uh, act by executive action or executive order. That’s certainly true, but I, I d-
I do think it’s telling. I mean, I think uh, eh, on, on the heels of, and I actually wrote
it down Brantley, when you said, to make sure I get your words right, “San Francisco could
be right.” [laughter]
I think. I think that’s uh, what you said. I think uh, President Obama was right when
he repeatedly said, “Look, I get, I get the, I get your frustration um, with Congress not
acting, um, but I uh, I’m not emperor, I’m not king, um, I’m president. Um, my obligation
is to take care that the laws be faithfully enforced. I can’t rewrite what Congress has
done.” And, I think in announcing uh, the executive action, uh, when President Obama
said, “Well, if you don’t like what I’ve done, uh, pass a bill.” Um, I, I think that, that
action itself was telling, with respect to the nature of the action being, being taken.
Um, and I think on the um, on the, the travel ban case, um, in light of the capaciousness
of the statute, which on its face refers to classes of immigrants or non-immigrants, um,
I think the fact, the, the fact that the legal discussion we’re having is focused on this
area of, you know, statements that the president made on the campaign trail, in a sense that,
that that, that that, that is the argument here that we’re talking about, to me underscores
how capacious the statutory language is. And, I think the other indicator is, that is, as
Andre said when he was talking about, and as Brantley said, focusing on the argument
of there being insufficient uh, insu- an insufficient finding and insufficient showing of the national,
of the national interest here, um, I think that’s, gi- given the capaciousness of, of
the statute um, and eh, Youngstown and the, that the, the executive is acting at his,
a- at his apex here. I think that’s a, that’s a very, that’s a very tough argument from
a legal’s perspective to be made. And, I think the fact that these are the arguments being
advanced, I think speaks to um, how much, how great a delegation of authority to the
executive the statute makes. One can certainly have um, policy arguments um, about whether
or not it’s wise for Congress to do that. We can certainly have policy arguments about
whether Congress should go back um, and p- and put restrictions on that authority. But,
as the law stands now, um, that law is, is, is quite capacious and I think uh, again,
if the, if the, if the arguments do uh, do go forward, I think it’ll be very interesting
um, to see, sort of, which arguments the Supreme Court uh, picks up on and, and how we see
them dealing with the um, the breadth of the, the delegation of, of power that’s occurred
in, in the statute. Yeah, and I would just say, on, just to put
this in practical perspectives and, you know, like to see where we can find some common
ground. You know, the, the, I think one issue that folks have, that folks take with DAPA
or with DACA is that it just, it seems like it’s uh, it’s like a pro- it is a program.
Right? There is a manual, there’s guidance for it, it’s somewhat formalized. People,
you know, get this um, label attached to it. But, so le- I mean I, you know, it’s also
helpful to just step back and from a practical perspective, think about it. There are 11
million or so undocumented individuals. Out of that, I think um, somewhere around 2 million
would um, qualify for DACA. So, there’s a variety of measures. If you came into the
country before a certain age, usually you were a child. You, you had to have been a
minor. You were brought in, um, you’ve resided here the entire time. And, in order to apply
for DACA, you have to be screened for criminal history. And, DACA does not apply to anyone
who has, in any way, any serious criminal history. So, if you think about an executive
who’s dealing with um, the issue of how to execute the congressional mandate of removal,
how to say, okay, how am I going to deal with this issue? Um, and you have a subset of individuals
who you can say, well, let’s take a look, let’s put a lens on these individuals. Here
are the individuals who are likely going to be the lowest priority. And so, what can we
do um, not only to identify who, who those are for, who those people are, for them to
come forward um, and to know that, you know, this subset is sort of, the least, you know,
they’re, they’re not a public safety issue, they’re employed or they’re, or they’re going
to school, um, these are individuals who are contributing to this society. So, how do we,
how do we place them into one category and go the other way? So, if you think about it
that way, and I think there’s, obviously there’s a lot of, wrapped up in how you place it that
way, which can cause legal issues, and which are the things that are uh, that were litigated
uh, here in the Fifth Circuit and contin- will continue to be litigated. But, I think
if you just think about it that way, um, I think, you know, we would argue that that’s,
that is squarely within the executive authority to determine who to target and who not to
for removal. And, like I said, the DACA, you know, classification can at any time, and
does, get revoked on an individual case by case basis, um, some of which we’ve challenged,
others we, you know, we obviously haven’t. But, it is not in any way a grant of lawful
status. Just one very brief point on DACA and DACA
having the caveat that you’re not necessarily not removable as, as a DACA holder. We saw
the information from Chairman Grassley recently that a thousand DACA permit holders ultimately
won citizenship as a result of their DACA permits. And so, I think as a DACA holder,
you’re, you have a fairly high degree of confidence that you won’t be removed as long as you don’t
commit a crime during that period. So, I know we can attach labels to it, but I think the
information from Senator Grassley clarify what we all knew might happen, which is this
could ultimately be a pathway to citizenship and, at a minimum, it’s, it’s not a pathway
for removal for someone who has a permit and doesn’t commit a crime.
All right. Uh, we’re ready to take some uh, uh, some questions. And, I think I see a microphone
emerging over in this aisle. Uh, let me just ask you, if you have a question, go ahead
and step up to this microphone and uh, and ask your question. I hope some people have
thought of some uh, of some good ones. We ask that these not be speeches, but rather
uh, questions for any of our panelists, or hopefully for uh, uh, for all of them. All
right. Sir? Good morning. Uh, thank you. Thank you all.
Um- What, uh, tell us who you are, to just-
I’m Don Walker, from Austin. Okay.
Um, most of the issues that you addressed, perspective seems to be executive overreach,
and I’ve appreciated the discussion on that. It occurs to me, uh, and I, I think especially
when Mr. Starr spoke about Congress ceding its authority uh, with some of these laws,
is it time to maybe try to breathe some more life back into the non-delegation doctrine?
All the debate is centered around agency deference. Since uh, we had Justice Gorsuch’s confirmation
hearing. And, I think perhaps the more fascinating topic is not deference but delegation, the
intentional grant of congressional authority to agencies, which has resulted in the administrative
stay being the size and having the power that it has. And, uh, under the Supreme Court’s
case American Trucking, i- as long as they give some sort of intelligible principle in
that law that delegates and that’s sufficient, which is uh, such a low hurdle you could not
even trip over it. Right? You walk and you’re over it. A- and so, it really is interesting
to see if after the court tackles perhaps agency deference first, if they will move
to a more robust non-delegation principle. Right. It, it looks like there’s some potential
to movement in uh, Chevron and Auer at least, which I guess is what you’re talking about.
Yeah. Thank you. Okay.
Um, my name is Josh [Amize 01:07:18], I’m a private litigator in DC. Um, one thing I,
that wasn’t discussed was the fact that, you know, DACA doesn’t just um, prevent someone
from being removed, it allows them to work, and I guess my question to Mr. Segura would
be um, I agree with you about the president’s prosecutorial discretion, the fact that if
he’s going to implement prosecutorial discretion it has to be through a program. He can’t be
sitting there with individual prosecutors, they’re doing his work. If he’s gonna instruct
them, he’s gotta do it through some type of manual. Um, but, the removal’s not the only
part of it. It’s the work status. So, do you agree that that’s the weakest part of your
argument, as to DACA being constitutional? And, second, and secondly, um, if President
Trump’s statements can be held against him on the travel ban, um, can those uh, litigating
against DACA site President Obama’s numerous statements that it was unconstitutional? And,
should courts consider those? All right, so, trying to figure out if I have
to answer the second question. Uh- [laughter]
-uh, you know, on the, on the first question, I think that that is a question most people
have when they say, “Okay, so you’re giving people who are undocumented some sort of ability
to stay? What does that mean? What benefits are they, are they going to get?” So, deferred
action carries with it, and, and with all, and with presidential administrations going
back, I guess 40 years or so, the ability to get employment authorization. So, that
has always come attached to it um, by, by congressional statute, I think, to, to uh,
to give employment authority uh, authorization for individuals who, who receive deferred
action because I think the, the practical situations that, well if you’re allowed to
stay here, you know, you need to be allowed to work, to live, and to contribute to society.
Pay, you know, they pay taxes, et cetera. So, all of those things come into play immediately
on, on deferred action. On, you know, President O- Obama’s statements, uh, I haven’t gone
back to personally review them. I think, you know, whenever I’m reading, sort of, amicus
briefs on the other side, they’re always front and center. Um, and I think, you know, personally,
when I would look at them, I think the president would’ve preferred Congress to act um, during
his administration on these issues. And, I think he was saying, “please act. Let’s
get something more formal. Let’s get something more concrete. Let’s get a pathway to citizenship
for these kids, um, er, uh, some of which no longer are kids but who were brought here
as kids.” That’s what I prefer um, is what I think he was referring to. Like, something
more concrete than just you get a two-year reprieve, can reapply. You have to meet all
these conditions but, you know, you’re, you, you could still lose it if you mess up and
all of those things. I think he was saying I want something, I want something, I want
something better, more um, uh, more f- er, you know, law, the law. And, uh, when that
didn’t happen, I think he said, “okay, well what’s in my power? What can I do? And, this
is how I’m gonna, sort of, figure the situations for this subset of individuals.” But I,
yeah, I would have to look back and say that- So, aside from the merits of those statements,
do you agree courts can wrestle with them and consider them [inaudible] and come to
a decision about [inaudible] Trump’s statements? Yeah, I mean, I think I would have, yeah I
think, I don’t see why there would be uh, any difference, I’m gonna put a litigation
caveat unless I go back and decide it’s different. [laughter]
Anyone else with a question? I have one, just a minute.
Okay, there? You touched on the general rule that we don’t
psychoanalyze the lawmaker or the executive order issuer, but uh, one exception to that
rule seems to be the establishment clause. And, could you all just discuss the establishment
clause angle on the travel ban? Is that a real argument? I know the Fourth Circuit had
agreed with it, but is that going to have any legs in the Supreme Court?
[laughter] Uh, could we just unpack that a little bit?
Brantley, do you wanna [inaudible] first? Um, well, I think it’s a, a novel concept-
[laughter] -to apply the establishment clause there,
which, which is why I think er, n- I, uh, in my mind, there’s a preliminary question
of does the constitution extend to non-citizens who are seeking entry? All right? And, i-
if you, if you don’t answer that first question the right way, the establishment clause has
no plays. Now, uh, I, I don’t believe that argument to be viable because I never get
past that threshold inquiry, but the court might because it was hinting at this bona
fide connection. And so, it was extending the constitution farther than um, I would’ve
thought was permissible. And so, we’ll have to wait and see if the court actually takes
up the case, if there is an intervening executive order. But, to me it’s a bridge too far.
Um, well, just to add something, as, as someone um, uh, who is, is privilege to uh, to litigate
um, establishment clause uh, cases and defending uh, governments uh, when they’re, when they’re
sued, um, it’s, it’s sort of the, I, I would say it is the uh, usual case um, where we’re
always met uh, in defense of um, uh, and, and, cha- and, and faced with an establishment
clause chain, uh, challenge, with some statement um, maybe that a board member has made um,
ou- out, not in a, not in a board meeting, to a press, at a speech, something like that.
And, and I think our, our response uh, to that uh, which usually is accepted is, that
the government action that’s relevant in an establishment clause challenge uh, is the
government’s action. And, the board acts, say you take a board as an example, a board
of county commissioners, the board acts as a board. Um, it doesn’t act, you know, individ-
through, through individuals. Um, so, I think consistent, you know, consistent with that
view in the establishment clause context would be that where you have statements that, the,
the only statements that would be relevant is the, you know, the government acting, the
executive acting as the executive, the commission acting as, as, as the commission. So, that’s
just another clause on um, how such statements typically play out in, in, in pure establishment
clause challenges. All right, and I, I mean obviously I agree
that violates the establishment clause and that it should be uh, the court should take
that up and could decide on that, obviously. But uh, you know, I think just, just looking
back at our immigration history, I think we should uh, you know, recognize that religious
discrimination in immigration was a concern. Like, we do not want uh, a country where preferences
on religion are used as a basis for entry uh, into this country. Whether as visas, whether
as refugees, whether as visa holders, whether as refugees or, or otherwise. So, that, that
is a, a principle of our country. So then, how do you uh, weigh that in a case like the
Muslim ban? And so, there are some pretty heavy campaign statements and tweets. Um,
there are some doubling down on those statements afterward. And, in the first, in, in ban 1.0,
there was a specific reference to um, a preference for religious, for Christian religious uh,
minorities in, in these countries. So, um, you know, obvi- I think that it, it can be
weighed. It’s um, there’s, you know, a test that the court can apply. Obviously, there
are a variety of ways in which the, the court could just say, we’re gonna go the route of
the Ninth Circuit and, and just rely on 1182F and the anti-discrimination provision in 1152
um, and not address it. But … So, let me, let me throw out a, a question.
This is kind of a pop quiz I guess for the panel, because we hadn’t-
Oh. -discussed it specifically. But, there have
been various um, um, mentions of uh, what uh, Andre referred to, lawful permanent status,
where people can, can, can stay forever and also reference to pathway to citizenship.
In some ways, and this is more of a policy question may- maybe than a, than a legal one,
but, but maybe in, in terms of the, of the policy debate in Washington, the uh, uh, uh,
at least one elephant in the room is the question uh, not only of whether people are or are
not going to be uh, deported, but whether they remain and have uh, uh, a legitimate
uh, uh, and reasonable pathway to, to citizenship. And, and, and, another relevant of that, uh,
in, in the public debate uh, is, is the suggestion that, that there are people who have been
going, who have been working on becoming citizens for, for a long time, uh, and have done so
uh, uh, uh, c- completely uh, uh, legally and have always been in the country uh, le-
legally. So the, so the question is, I mean, ex- explain to us how, how that, how that
works, a- an- any of you, uh, and he- help, help, help us out on that p- uh, uh, i- issue
of, of becoming citizens and, and, and how that, how that fits in uh, uh, administratively
or otherwise, or, or legally uh, t- uh, to the question of w- of what you do with, with,
with, with those who, who have been in the country but not, but not lawfully and, and
who, who wish to become citizens. Right. So, I first off will give the disclaimer
that I’m a, not an immigration law uh, attorney. I don’t practice immigration, uh, in immigration
courts. But, I think, you know, there is the, the notion that we should recognize that some
people, there is a tension. Some people do come in um, lawfully, stay, and then I think,
then I think the sort of, rhetorical response is, well why can’t everyone do it like that?
Why can’t everyone um, you know, wait in line? And um, and I think there, you know, the line
for some, there is no line to even stand in. There’s no practical line. Um, for, for, you
know, a, a Mexican immigrant who um, you know, for, wants to come here to work, there’s just
no line for him to get in and say, “I wanna come live in Houston and, you know, start
a construction job.” There’s no way that that’s going to practically happen. Um, and so there’s,
there’s not a way for everyone to come in the line. Some people have more privilege,
more status, oftentimes based on their um, employment or education um, as certain, you
know, more i- i- immigrants who wanna enter the country who have uh, qualifications. So,
I think there are a variety of ways to get in, uh, and, but I think that, you know, get
in line and wait is, is, is not a reality for most people.
Um, I’ll, I’ll respond a little bit. I, I remember back in my um, uh, time in, in, in
the White House, I think someone um, don’t remember who it was, had been out making a
representation that under, under whatever version of immigration reform was currently
um, [inaudible] at the time, that individuals who would benefit under that, uh, under uh,
uh, that law um, that had been proposed, by the time they became citizens would have gone
through a longer pro- very categorical statement, would’ve gone through a process longer than
anyone ever. Um, and I sort of, had the unfortunate job of calling the communications shop and
uh, and saying, “Well, I, I hate to, I hate to break this to you, but if you actually
look at current lines um, and the countries, you have people, I think the Philippines,
I think it might’ve been the Philippines, that people in the Philippines, I think it
was currently a um, 14, maybe 15, 16, maybe even in, in the decades um, wait.” And, I,
I do think there is an issue. I remember back in law school, uh, I remember it was Chicago.
If anybody ever tried to make an argument based on fairness, uh, you just knew the professor
was gonna come after you. Um, because fairness uh, right, there’s so many um, so many valences
to fairness. And, and, I do take Andre’s point, but I also take the point that we, we do have
a system where you have people um, who take, who’ve taken our country at its word and they’re
back in their home countries, they’re going through the process. Um, I, I don’t think
there’d be much disagreement among anyone, either in this room or Congress, that our
current immigration system um, is in great need of more rationality and more repair.
I think the debate we have is how our constitutional system permits that problem to, to be addressed.
And I, and I do think it is important to consider, a- as part of this debate on a po- a- as a
policy matter, to weigh the interests not just to those for whom, as Andre says, essentially
there is no line um, because that’s the way Congress has set it up, but also those who
have been waiting in line um, for decades in their home countries and how we craft reforms
as a policy matter um, that, that are, that are fair and that account for, for those interests
as well. I’d just like to quickly point out that i-
if Congress were to give lawful permanent status to dreamers without anything more than
an immigration bill, then that would seem to be perhaps an incomplete policy solution.
Because, then you’re incentivizing those who have been waiting in line for the, the lawful
ability to immigrate to the United States, you’re incentivizing them to, to use the unlawful
methods. And so, I think that perhaps is why the president has been negotiating, trying
to, talk about DREAM Act plus border security. Uh, we’ll see where those negotiations go.
Uh, congressional negotiations are not always fruitful, uh, but I, I think that is why the
debate is gravitating towards a two-sided coin.
Question? Um, Mr. Segura, one thing you said that jumped
out at me was that, you know, we, you said you think the establishment clause does apply
to prohibit any discrimination in immigration based on religion even though people who have
no connection to the United States previously, was my understanding, and um, just in our
general policies, we can’t have any discrimination. And, I think um, historically there has been
a preference for how we chose our immigrants, to how they were gonna affect our country.
So, are you saying that would apply just strictly on the basis of religion um, or the formalistic
are you a member of a particular religion? Or, would it be different if, say Congress
passed a law or the, you know, the executive acted pursuant to that statute, saying, okay
if you’re, if you have a particular country where a credible poll or a credible, you know,
we believe that say, 80% of the population thinks homosexuality should be punished by
death or other criminal punishments, or that a huge percentage of the population thinks
women should not have equal rights and should be property, are you saying we couldn’t, as
a matter of controlling our country and who comes into it, say okay if 80% of the people
think homosexuality should be illegal, we can roughly estimate that 80% of the immigrants
will think that homosexuality should be illegal or punishable by violence, and we don’t want
those people here so we’re gonna restrict, we’re gonna restrict those people, the people
coming from that country. Are you saying that there’s no ability at all to try to control
and um, influence who comes into the country and what they believe and how they’re gonna
vote once they get here? Right. So um, on, on the first question about
um, connection to the United States, which I think is, you know, why are we, you know,
these uh, some of these individuals who are seeking entry are abroad. Right? But, if we,
as a country, say, had a policy that, you know, that the president issues uh, an executive
order that, that says we have um, you know, we will do this program but, you know, any
Muslim abroad will not be allowed to do whatever. And, I think just having that as a s- as a
part of government policy is a problem for the establishment clause. That causes harm
to people of that faith who are here. Um, the other way to look at it is that people
who are coming in on visas have a, often, connection to people who are here. So, when
they’re denied a visa and they’re, you know, if you, if you, uh, uh, accept that there
is um, a preference or a discrimination on the basis of, to person’s religion, then the
person here in the country is harmed. So, there’s ways to think about it more so than
just, oh okay, that person’s abroad. I think on the question about who we allow to enter,
I think that’s exactly what 1182F is intending to do. The, those basis, those decisions can
be made on an individual basis, but if it is a categorical basis um, that is fundamentally
based on religion for people when there’s no individual determination that that person’s
entry to the country would be detrimental to the national interest. So, sure, there
may be someone in some country, just a bad person, and think [laughs], you know, it’s
just [laughs], we, there, i- and come and the president and his attorney general can
decide that person is going to be detrimental to the national security interests of this
country under 1182F. But, what the president can do is use that categorically for millions
of people located in another country, when it’s based fundamentally on religious grounds.
Anybody wanna follow up on that? Okay. Question? I have a follow up um, Mr. Segura to that.
The Statute 1182F says class, and you keep talking about a individualized determination
is necessary. How do you get around the explicit language in the statute?
Right. So, when it has been used, it has been used for specific classes of people who have
done specific things. So, if there is a national security interest because there is a, a group
of people who have engaged in a specific thing in another country, then that’s, that’s different.
So, I think that what I would say is the class that’s being argued is much more specific
than people who are just broadly categor- categorized under that for one reason.
So um, help, help us out a little bit, members of the panel, on, one of the things that hasn’t
been mentioned here is that there is a, as I understand it, a history of immigration
quotas that some might consider invidious in some ways. It might favor certain are-
countries or, or areas of the world or, or, or certain uh, uh, uh, eth- ethnic groups.
Help us out on what the history of that is and whether uh, if, if you know any of those
uh, uh, quotas have ever been, have ever been challenged. They’re, they’re, they’re fairly
strict, as I understand it, and, and fairly unbalanced in terms of various areas of the
world. Um, yes. And uh, when you, when you look,
it really is um, a, we use the term a lot, a patchwork um, of, of, of quotas. And, I
remember a couple of times um, uh, as a, as someone involved in immigration policy in
the White House, you know, when I would ask, “Well, what’s the history of this particular
quota,” which would seem odd, you know, 9 times out of 10 I would get some explanation
about Congressman so-and-so in-, had an interest. I mean, it’s, it’s, it’s, it’s really um,
really something, which is why I think I say, I think that there’s, it’s an area that there
should be broad agreement on, um, it’s that there’s a lot um, in our immigration system
that needs to be fixed. But, by and large to your point judge, in terms of legal challenges
to that, um, you know, go back to INS v. Chada. I mean, Congress’s authority to establish
a uniform rule of uh, naturalization is uh, beyond, beyond question. So, I think from
the, from a legal perspective, in terms of the courts, when Congress is drawing lines
and making distinctions and establishing rules and categories, um, you know, if the president
is at his apex, um, in terms of uh, uh, 1182F, I think Congress is really acting um, in its
plenary authority in, in s- in setting, in setting these rules. And, I’m sure someone
in here, I hate to make a statement like this, uh, will, will come up afterwards and prove
me wrong, but I’m, I’m not aware of a legal challenge that, that has succeeded on the
basis that that is somehow beyond Congress’s authority, there, or that there is another
provision of the Constitution that, that interferes. And, I do wanna say one point um, to Andre.
I mean, Andre has talked about the, the two statutes, sort of, 1182F and then he’s, he’s
talked about the statutory in terms of the nondiscrimination um, principle. I do think
it’s important to, to point out that 1182F is talking about entry. It’s referring to
entry. And, the other statute um, is really referring to visas. I think one of the legal
issues is, is going to be whether those, whether those two concepts are truly synonymous, such
that there is a statutory constraint or, or whether it’s, I think the administration would
argue, that, that provision has no play with 1182F. And so, if there is going to be a restriction
on 1182F, it is going to have to come from the Constitution. It can’t come from that
other, that other statute. So, I just- Right.
-throw that, throw that in the mix. Gene Meyer, I think you, you, you, you look
like you’ve ha- you had a question ready for a few minutes.
Yeah, uh, I, I, I do. I’m very um, I’m not quite sure exactly how to ask it, but um,
if you have a group that is, or a country where you have the, a high percentage of people
who clearly have a pretty negative view of, of the US, obviously that doesn’t say anything
about any individual who is trying to immigrate. On the other hand, uh, if you have a situation
where you’re trying to, you want, obviously immigrants who are supportive of your country
and believe in it. What, what is the, what is the appropriate, sorry about that, what
is the appropriate way to uh, and this is really for the whole panel, what is the appropriate
way to, to, to balance that? First, even before you get to the legal question, this is a policy
matter. How do you, how do you go about doing that? Because, you know, I, yeah, take, take-
Right. -you know, and it, it, it strikes me as very
challenging. And uh, uh, and I, I, I also think if you say, “Well, look, it depends
on what the view of the country is,” then you’ve got a lot of people arguing, well we
think the view of the country is X. And, you know, a lot of people disagree with that.
So, how do you, how do you go about that? So yeah, I think that’s the question of what’s
bona fide and what’s facially [laughs] legitimate. And, I’m not gonna give you a satisfying answer,
but [laughs] I think that, the o- what I will say, and that probably what I wish, um, I,
what I probably, I think people who, who would agree with President Trump’s ban would, would’ve
wanted and would’ve maybe made it easier is if he had actually set forth justifications
and actual reasons for the initial Muslim ban. That was, you know, done very quickly.
There weren’t actual specific, factual reasons. Um, and, you know, one thing that people say,
well, well, you know, Obama identified these countries um, as also um, you know, for, for
a particular focus. But, what the Obama Administration said for those countries, individuals can
no longer qualify for the visa waiver program. So, that was a way that they could, you know,
do it easier. Uh, they’re no longer able to do that, so they’re subject to additional
review. Um, so, I would answer it by saying that, that what I think all of us would’ve
wanted to see as, for the justifications um, factual, actual justifications were not present
uh, in the first ban. One thing I would add is that the travel ban
executive order allowed for case by case exceptions, which I think gets to your point. Because,
you, you might draw some broad categorical rule that applies to 80% of, of the citizens
of the country, but there might be 20% who have, have the spirit that we want in America.
And, um, that case by case exception really allows you to ferret down and get into case-by-case,
not just class-by-class types of, types of individuals.
Question? Yes. So, I’ll throw this open to the whole
panel. It’s more of a policy question. But, regardless of what’s going to happen with
DACA, the travel ban, I mean we, the fact is we have millions of people here, like Andre
said, with only a certain amount that can be deported each year by the government. So,
the practical consequences or whatever happens, you have immigration court system that’s uh,
each judge has about 1800 cases on their docket and uh, you have people who are in immigration
proceedings who, if they’re not detained, are being reset to 2021 and 2022, which has
been the result of DACA, of the surge, of the kids being put uh, given a priority to
have their immigration hearings. So, what’s gonna be done, policy-wise, to address that
when you have people who are going to be here five, six years, regardless of what’s gonna
happen? Yeah, I mean, I think you, you’ve identified
another huge problem to the system, is that it’s, it’s overloaded. The IJ system’s overloaded.
Um, I think there’s a push to hire more immigration judges, but yeah. I mean, I think that, that
is a, a real practical hurdle um, which I think would go to my point about, sort of,
presidents determining here are our priorities and even if it’s done in a more formal way,
through guidance, you know, that’s why I think these things, these things need to happen.
I don’t uh, er- as you would susp- suspect and agree that DOPA, I mean DACA has caused
a surge or there’s a reason for it. Uh, I suspect there are differing agreements here
but yeah, you know, that’s, that’s what I would say to your point, but yeah I think
you’re right about the immigration system being, um, overloaded and backlogged, a big
problem. That was past our last question and um, the
question I received is uh, do we still see a case or controversy going forward give the
changes um, to the bans.
[laughter] I think those who are preparing their arguments
would probably say “Of course.” [laughter]
Of course, there’s a case of controversy, not the day after we have argument you want
to, you know. Depending on how argument goes, disagree with me.
So our, our, our ACLU line is the devil’s in the details and we have to get down and
see what’s actually in the new one. All right, let’s give this panel a big round.

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