There have been many items in the news weeks into Trump’s presidency regarding immigration. Of them the most notable have to do with the president’s executive orders on immigration for refugees and non-refugees alike, published by the White House in February 2017. Before one can fully understand what is being put into place it is crucial to know what is at hand both in the law and on the ground. For that reason, this piece will open up with an explanation of what exactly an executive order is, and then we will discuss its reach to the individuals it addresses, and the states that are not following them as they are proposed.
According to the 1975 case of Independent Meat Packers Association v. Butz:
“An executive order is a rule or an order issued by the President to an executive branch to take a specific action or to change a specific practice. Executive orders do not require Congressional approval to take effect but they may have the same legal weight as laws passed by Congress if issued pursuant to a statutory mandate or delegation of authority from Congress.”
What this means is that an executive order can be put into place only if it is consistent with current law. This means that the president, despite what many say, cannot make his own laws. For example, an executive order cannot outlaw abortion. An executive order cannot implement segregation. But an executive order can make an existing law a priority for enforcement, such as when President Lyndon Johnson said that segregated schools had to follow the law.
So what are the two executive orders that have made such big headlines?
Executive Order #1
Enhancing public safety in the interior of the United States: Have you seen the Facebook posts about how “sanctuary cities” are going to get their due? That’s what this order is about, regardless of if your FB friends understand it on any level. The purpose of this order is to try and keep federal funds out of cities or states that will not enforce laws regarding immigration. The reason these cities and states would not follow the law is because they might contradict their own laws or regulations on the exact same issue. And the reason the federal government can withhold funds is because federal law trumps state law, such as it did when segregation in schools was ended in 1971 (as we mentioned earlier with Lyndon Johnson’s executive order on the matter). This executive order also gives the Secretary of Homeland Security the power to fine illegal aliens with civil penalties.
In addition to all of this, the order takes away President Obama’s earlier order that put the funds and manpower of Homeland Security on the detention and removal of especially dangerous criminals, and aliens posing security risks. What President Trump’s order does is it directs officials from immigration to detain and remove virtually every alien who is unlawfully in the country, particularly if there have been any immigration issues, whether or not they have violated criminal law, no matter if they pose a security risk or are merely law abiding people otherwise. The expected result is that it will have a seriously negative effect on communities with many immigrants throughout the country. In addition to that there will be a huge budget increase to the Homeland Security in order to fulfill the manpower requirements. This is not just about more people on the ground, but office space, uniforms, weapons, training materials, and more.
Executive Order #2
Protecting the nation from foreign terrorist entry into the United States: Do you remember how there were 7 countries that were having bans put in place, and none of them were Saudi Arabia – the country that was most deeply involved in the 9/11 attacks? This is that order. It suspends admission of refugees from Syria for 120 days while also preventing entrance for 60 days to persons from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen.
It is a blanket order that does not take into account the actual situation or the person applying to come over to the U.S.
Are These Order Legal?
Many have been asking if the executive orders were legal when they were signed by President Trump. And if they were lawful, then how is it possible that federal judges were able to prevent them from being enacted?
This is where the lawsuits come in. In court, it is being challenged on whether or not these orders are legal or even constitutional. The Constitution of the United States offers the procedure for which laws like these are set up. The President cannot create laws (think of the old cartoon “How a Bill Becomes a Law”). Instead, the president’s role is to enforce laws made by Congress. This is where the issue at hand come into play. The orders violate the provisions found in the Constitution. He has created a law that never when through the needed procedures. Additionally, this order violates the Immigration and Naturalization Act of 1965 – also called The Hart-Celler Act – that put a ban on discrimination toward immigrants because of origin.
What Will Happen Then?
Is it possible that the President can revoke the visa status of someone? Actually, he cannot. There are provisions noted in these laws that control visas and immigrant statuses. They can be revoked, but there are clear procedures that have to be followed to do so.
Deferred Action for Childhood Arrivals: DACA
What is the DACA program? It is a program that saves children from the terrible situations of many nations at war or other plights. What will happen to kids currently protected by DACA? That is a question that will only be answered in time, because for them to be negatively affected further (beyond the current uncertainty) the administration will need to make good on the promise it made to eliminate the program. As of now, applications are being accepted and approved, meaning that DACA beneficiaries are lawfully entering. So that’s a good thing.
However, President Trump may terminate the length of time a DACA recipient is in “deferred action” status. But this is slim because it doesn’t allow the federal government to do this. The reason is complicated, but essentially, it would be the same as a government passport or license being shortened. It could happen, but has not in the past, particularly because it would be in stark violation to many due process clauses that have been fought in court over the years.
To read “The Scope of Trump’s Executive Orders and DACA,” visit the following newsletter from FitzGerald & Company.
If you reside in the state of Massachusetts and would like to obtain information about filing an immigration petition, please contact us at: http://www.fitzgeraldlawcompany.com/contact.php or call 617-303-2600
About Desmond P. FitzGerald:
Attorney Desmond P. FitzGerald is the Principal and Managing Director of FitzGerald & Company, LLC in Boston, MA. He is a criminal and immigration litigator and has successfully litigated hundreds of immigration cases in Federal court. He has more than 20 decisions published and many of them have created precedent. Attorney FitzGerald is admitted by the Bar to practice law in MA, NH, FL, and Washington D.C. and he is an active member of the American Immigration Lawyers Association (AILA) and the National Association of Criminal Defense Lawyers (NACDL). For more information visit: http://www.fitzgeraldlawcompany.com.
Contributed: Hispanicize Wire – Trump’s Executive Orders: The Breakdown