From the arrival of the first European settlers to the melting pot that now defines our country, immigration has been a significant part of the history of the United States. The U.S. has experienced major growth in population and an apparent cultural change as a result of immigration. Despite the long history of immigrants in this country, the United States continues to struggle with its attitude towards the issue of immigration. The country is divided as some perceive immigration as an economic challenge while others as a valuable resource. Immigration is a legal dilemma that is putting the Executive and Judicial Branches at odds with each other and has and will continue to bring havoc to the federal government and the President of the United States.
Currently one-fifth of the world’s migrants live in the United States. In 2016 the United States had a population of 323.1 million people. According to data from the American Community Survey, approximately 43.7 million immigrants lived in the U.S. which accounted for 13.5 percent of the total U.S. population (Zong, Batalova, ; Hallock, 2018). In 2017, data from Current Population Survey show that immigrants and their children (U.S. born) account for approximatively 86.4 million people. This number represents twenty seven percent of the overall population of the United States (Zong, Batalova, ; Hallock, 2018).
As the presidential nominee, Donald Trump’s campaign focused on reducing illegal immigration and tightening border security. Since the 2016 election of Donald Trump, significant actions have been taken by the Trump administration that has continued to raise political and public debates on immigration. The first immigration dilemma of the administration came upon the actions against refugees. The refugee admissions ceiling and allocations by region of origin is set each year by the president to limit the amount of refugees entering the country. President Trump cut to less than half the admissions ceiling set by the Obama administration for Fiscal Year 2017 (Zong, Batalova, & Hallock, 2018). The admissions ceiling was cut from 110,000 to 50,000 refugees. The Fiscal Year 2018 limit was set to 45,000 which have been reported to be the lowest allowable number since 1980 when the program first began (Zong, Batalova, & Hallock, 2018).
From the series of executive orders that were issued against immigration the most shocking were Executive Order 13769 and 13780. Executive Order 13769 was signed on January 27, 2017 and later replaced by Executive Order 13780 on March 6, 2017. Both orders suspended the admission of all refugees for 120 days and issued a 90 day ban of visitors to the United States from the following seven countries: Syria, Sudan, Iran, Iraq, Libya, Yemen, and Somalia. The order became known as the “Muslim ban” because it restricted entry into the U.S. from predominantly Muslim countries. President Trump had previously called for the banning of Muslims from America and the listed countries were flagged for concerns of potential terrorism against the U.S. The signing of this executive order resulted in widespread protest and legal intervention.
Legal opposition was immediately brought to the courts after the order was issued. In a span of three days, close to fifty cases were filed in the federal courts. Those challenging the order included individuals who were either deemed inadmissible, those that had been detained, and states represented by their State attorney generals. Challengers argued that the actions of the President were unconstitutional and against federal law. “We condemn President Trump’s unconstitutional, un-American and unlawful Executive Order and will work together to ensure the federal government obeys the Constitution, respects our history as a nation of immigrants, and does not unlawfully target anyone because of their national origin or faith” (Ferguson, 2017). The previous statement was given by Washington Attorney General Bob Ferguson on behalf of 15 democratic generals opposing the order. The States represented included California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Vermont, Virginia and the District of Columbia (Ferguson, 2017).
In another effort against the President’s Executive Order a lawsuit was filed by the states of Minnesota and Washington in which a temporary restraining order was issued. On February 3, 2017, in the case of State of Washington and State of Minnesota v. Trump, Federal Judge James Robart issued the temporary restraining order which blocked some of the major parts of the Presidents order. The restraining order prevented the Executive Branch from enforcement of the following three provisions:
1. Section 3c: Suspending entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days.
2. Section 5a and 5b: Suspending the Refugee Admissions Program for 120 days and section 5(b), which gives priority to religious minorities when the program is reinstated.
3. Section 5c: Suspending the entry of Syrian refugees indefinitely. (Kohse, 2017)
Once the temporary restraining order was issued the U.S. Customs and Border Patrol and the Department of Homeland Security stopped enforcing the provisions that had been blocked by Judge Robart. Those affected could now enter the United States and once again apply for visas. Individuals who had their visas revoked would have their visas reinstated by the State Department. On February 4, 2017, in response to the temporary restraining order, the Federal Government filed an appeal with the United States Court of Appeals for the Ninth Circuit. The Federal Government was requesting an immediate stay of proceedings in the District Courts decision in the issuance of the restraining order. Their argument was on the basis that the Judicial Branch did not have enough authority to review the President’s actions regarding immigration. The request was denied, and oral arguments were scheduled. On February 9, 2017 a three-judge panel (Judges Canby, Clifton, and Freidland) ruled against the government because they were unable to prove that they would be successful in their Due Process claim (Kohse, 2017).
The amount of opposition brought against the executive order ultimately opens the door for what can be viewed as “Executive Disobedience”. There is a looming concern that the president and his administration will encourage government officials to disregard and disobey orders given by the courts. Instances of executive disobedience began to emerge after the issuance of the restraining order. Reports were stating that federal agents with the Customs and Border Protection were continuing to enforce the Presidents executive order and preventing passengers from boarding flights entering the United States. Specifically, at the Dulles International Airport in Virginia there were reports of agents refusing immigrant detainees from speaking to lawyers and preventing legal permanent residents of the U.S. access to legal counsel, which was a violation of the restraining order (Lithwick, Neyfakh, & Stern, 2017).
The presence of executive disobedience continues to add to the legal dilemmas that immigration issues bring along with it. The immigration executive order presents the issue of whether the Federal Courts will have the desire to hold administrative agencies and executive officials in contempt of court when they disobey court orders. In the previous example of the Border Protection agents at Dulles Airport, the State of Virginia filed a motion in the District Courts to hold the Federal Government in contempt of disobeying the temporary restraining order. At the time the President issued the executive order, Yale Law Professor Nick Parrillo released an article titled: The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power. This article provides a detailed look into how the Federal Courts handles disobedience within the Federal Government (Parrillo, 2018).
Professor Parrillo makes four conclusions in his article regarding the court handling the disobedience of the federal government. The conclusions are as follows:
1. The federal judiciary is willing to issue contempt findings against agencies and officials.
2. The higher courts have exhibited a virtually complete unwillingness to allow sanctions.
3. The higher courts have bent over backward to avoid making pronouncements that sanctions are categorically unavailable.
4. Even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power (Parrillo, 2018).
In conclusion, it will be interesting to see how the Federal Government and the President handle court orders in the future as immigration will continue to create legal dilemmas for them. The fight for immigration is long from being resolved and other battles will emerge to test the response of the federal government. Just recently U.S. District Court Judge Dana Sabraw signed and injunction to block family separations at the border. This will serve as another test to determine the integrity of the government to avoid disobedience and uphold the courts orders and the willingness of the courts to establish punishment on those that disobey.