By Jack Fruchtman
Debate over immigration continues to roil the country; it is an issue of great interest to members of the Island immigrant community and those who support them. With the inability or unwillingness of Congress to deal with the issue, it is now up to the United States Supreme Court to begin to resolve the issue.
Not so long ago, Republicans and Democrats worked cooperatively to resolve social and political problems in a collegial manner. Republican Senators Everett Dirksen and Howard Baker found common ground with Democrats Mike Mansfield and Hubert Humphrey on civil rights. Republican Orrin Hatch worked with Democrat Edward Kennedy on education. Senators John McCain and Kennedy attempted, and failed, to devise immigration reform.
Today, with a Congress wracked by unrelenting bipartisan and ideological divisions, the only recourse is appeal to the federal courts to resolve the many issues that are the responsibility of elected officials and not unaccountable, unelected, life-tenured judges. James Madison wrote in Federalist Papers that “in republican government, the legislative authority necessarily predominates,” because it is the lawmaking body of the government. But that was 1788, not 2018.
In 2012, President Obama allowed “Dreamers,” those brought to the United States as children, to remain in the United States if they met certain requirements. In accordance with his Deferred Action for Childhood Arrivals (DACA), Dreamers had to have arrived here before they were 16 and resided here continuously since that time. They could not be older than 31 and they had to be in school, employed, or serving or honorably discharged from the U.S. military.
Last September, President Trump cancelled the DACA program, stating it would end on March 5. On Jan. 9, he told members of Congress, “You folks are going to have to come up with a solution. And if you do, I will sign that solution.” Then he changed his mind.
Last week, the Senate tried and failed to come up with a compromise to allow Dreamers to remain here, while securing more funds for border security. A bipartisan bill failed to garner the necessary 60 votes to avoid a Republican filibuster. President Trump said if that bill passed, he would veto it, and the Department of Homeland Security (DHS) operatives telephoned Republican senators the night before the vote urging its defeat.
The bipartisan effort garnered 54 votes, six short of those needed. A Trump-supported proposal received only 39 votes, which demanded immediate funding for a wall between the United States and Mexico, which he once said Mexico would pay for. He added two demands he never addressed during the campaign: Congress must end the diversity lottery program, which brings underrepresented nationalities to America, and limit family reunification, which he calls “chain migration.” The House never did schedule an immigration debate.
Last month, meantime, a federal judge in California issued a nationwide injunction against the Trump cancellation of DACA when he ruled that the President acted in an “arbitrary and capricious” manner in violation of the Administrative Procedures Act. Although he noted the President’s words about Hispanic and Latino immigrants, the judge declined to hold that the proclamation was based on racism. And then, just last week, a federal judge in New York also halted the Trump initiative with a similar nationwide ruling.
The Justice Department initially began to take the California judge’s decision to the U.S. Court of Appeals for the Ninth Circuit, and it could appeal the New York decision to the Second Circuit. But both have been cut short because the White House has jumped over these courts to take the appeal directly to the Supreme Court, which on Tuesday did not announce whether it would hear the case. The Supreme Court typically waits for a final judgment in the lower courts before it agrees to hear an appeal.
The justices have agreed to discuss the issue again this Friday. That afternoon or on Monday morning, they will either announce that they have declined the appeal or they will hear it. Or, alternatively, they could again decide to discuss it. The problem is that time is running out fast: They have to hear oral arguments in April if they want to decide by the end of the term, usually June 30.
The Supreme Court has only allowed expedited appeals to circumvent the Circuit Courts of Appeal in extraordinary cases. In 1952, President Truman attempted to seize U.S. steel mills during the Korean War as a workers’ strike threatened to halt production. In 1974, President Nixon tried to stop the courts from obtaining the White House tape recordings as the Watergate crisis unfolded. Both presidents lost: The court enjoined Truman from seizing the mills and ordered Nixon to release the tapes. These cases involved only one federal appellate court; jumping over two may well be unprecedented.
Courts are also dealing with the third Trump travel ban — the first two expired — which the White House issued last September. This one identified eight countries that DHS officials identified as unable or unwilling to guarantee that travelers from these nations are not terrorists. They are Chad, Iran, Libya, Syria, and Yemen, but also included were North Korea, which allows few travelers to the U.S., and public officials in Venezuela.
Federal judges in Hawaii and Maryland halted the ban based on candidate Donald Trump’s remarks about Hispanics and Latinos, whom he called rapists, thieves, and murderers. The Ninth and Fourth Circuit Courts of Appeal upheld these injunctions. The Supreme Court has agreed to hear the administration’s appeal case in April, with a decision expected by the end of June.
This is indeed a sorry, even tragic, state of affairs when the people have to rely on federal judges rather than legislators to resolve pressing problems facing America, including many Vineyarders. The framers of the Constitution would be sorely disappointed and deeply saddened by the country’s current politics.
Jack Fruchtman, an Aquinnah seasonal resident, teaches constitutional law and politics and civil rights and civil liberties at Maryland’s Towson University.