The president, the states, and the Vineyard


Writing in the Atlantic last September, journalist Selena Zito, who has worked for several Republican presidents and state officials, wrote this about candidate Donald J. Trump: “The press takes him literally, but not seriously; his supporters take him seriously, but not literally.”

While now-President Trump may not literally fulfill most of his campaign promises, he has demonstrated that he will try to fulfill some of them: Everyone should take him seriously and literally. His recent address before a joint session of Congress displayed a kinder, gentler Donald Trump, but his message was the same as it has been since he announced his candidacy: Promote economic nationalism, deport undocumented immigrants, repeal and replace the Affordable Care Act, eliminate many regulations, and lower taxes, especially on corporations and the wealthy.

The administration has not yet fully formed its views on some of these issues, but it seems to have on two contentious ones: immigration and transgender rights. Can Americans who object to Mr. Trump’s policies do anything to resist them? In fact, plenty.

As political scientist Ben Barber noted in the Nov. 14 issue of The Nation, the pushback may be local: “The cosmopolitan voice is, of course, the voice of cities, and it is the natural antidote to [President] Trump.” Barber might also have included the states and all their subdivisions.

Concerning immigration, let’s recall that under the Obama administration, some 2.5 million undocumented immigrants were deported. All of them had been charged with serious crimes. Under the Trump administration, the policy seems to include anyone with a minor charge, even jaywalking or failure to pay a parking ticket.

Residing in the U.S. without documentation is not necessarily a crime. If foreigners overstay their travel, tourist, or student visas, their status is designated “unlawful presence.” This is a civil, not a criminal offense, though they may be subject to deportation.

People who cross the border without papers and without going through border security commit a misdemeanor. If found guilty beyond a reasonable doubt, they may be subject to six months in jail and/or a $300 fine and deportation.

The Trump administration’s first foray into this thicket occurred with the travel ban Executive Order that the Ninth Circuit Court of Appeals suspended. The order appeared to promote religious discrimination, and failed to grant due process rights, like holding a hearing to determine a person’s eligibility to enter the U.S.

If the administration’s new order, signed by the president on March 6, falls short of satisfying the Ninth Circuit that it is substantially different, the court injunction will stand. Meantime, Massachusetts, along with several other states, has already filed suit to challenge it in federal court. The order goes into effect today.

Meantime, two internal Department of Homeland Security documents seriously undercut President Trump’s travel ban. One proclaimed that a “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” The other concluded that it is near impossible to screen in advance the potential terrorists who come legally to the United States with visas. Most become radicalized after they are here.

The department has also released two memorandums concerning the removal of undocumented immigrants. White House press secretary Sean Spicer noted that Mr. Trump has “taken the shackles off” the Border Patrol and Immigration and Custom Enforcement (ICE) agents.

We have witnessed the creation of what are essentially deportation squads, with agents raiding the workplaces, churches, and homes of undocumented immigrants. The goal is to ship them out of the country, as families are split, and upheaval takes place in industries where undocumented immigrants work long, hard hours, like restaurants, hotels, farming, and landscaping.

The city of Boston, and other municipalities and counties, have identified themselves as places where undocumented immigrants may find sanctuary. They will not cooperate with federal immigration officials to hold undocumented immigrants. This is a federal, not a state or local, responsibility. The Trump administration has threatened to cut off all federal aid to those areas, though such a move would likely require congressional action.

Vineyard attorney Rebecca McCarthy pointed out in the Feb. 2 edition of The Times (“On Immigration”) that some towns, counties, and cities have agreed to allow federal authorities to co-opt local law enforcement and prison officials to seek out undocumented immigrants and house them in local detention centers.

This is codified under Section 287(g) of the Immigration and Nationality Act of 1952, which allows for agreements between states and local communities with ICE to detain undocumented immigrants. Ms. McCarthy noted that in Massachusetts, two sheriffs’ departments, Bristol and Plymouth, are participating.

In 2009, then-Governor Deval Patrick agreed that the Massachusetts Department of Correction would also participate. The Massachusetts branch of the American Civil Liberties Union asked Governor Charlie Baker on Feb. 23 to terminate the commonwealth’s 287(g) agreement, given the callousness of recent ICE arrests and detentions.

On the Island, the organization We Stand Together is working to protect and formalize current local law enforcement practices, to prevent future use of local resources (such as optional 287g partnerships) to enforce federal immigration law. It is time for the commonwealth to become a sanctuary state, as have California, Colorado, Connecticut, and New Mexico. Gov. Baker has demurred, stating that local, not state, authorities should resolve such issues.

Gov. Baker is wrong: the commonwealth should be a sanctuary state. If not, the Vineyard should become a sanctuary Island. The Massachusetts General Court is currently considering the Massachusetts Safe Communities Act, which has been endorsed by the ACLU; if enacted, would forbid state and local law enforcement from participating with federal authorities in detaining undocumented immigrants. This would end the cooperation of Bristol and Plymouth County sheriffs’ departments with ICE agents. The bill also prohibits the use of commonwealth tax money to fund deportation of undocumented immigrants.

Meantime, on the matter of transgender rights, the White House withdrew President Obama’s directive allowing transgender students to use public school bathrooms and other facilities corresponding to their gender identity. Mr. Obama cited Title IX of the Education Amendments of 1972, which makes it illegal to discriminate on the basis of sex or gender, which he said included gender identity.

Supporters of the Obama directive, like Gov. Baker and Massachusetts Attorney General Maura Healey agree that President Trump’s action poses a civil rights issue, covered by Title IX. Massachusetts has additional laws on the books, passed in 2011 and again last year, protecting the rights of transgender students. Opponents, like President Trump and several state attorneys general, claim that the Tenth Amendment empowers the states to decide whether they want to allow transgender students to choose which bathrooms to use.

The issue raises two important questions. First: Does Title IX include transgender identity? Second: Are civil rights a national or state matter?

For the first, the Supreme Court originally scheduled oral arguments in a Virginia case on March 28: Gavin Grimm, who was born female but now identifies as male, wants to use the boys’ bathroom in school. Virginia argues he must use the one consistent with his biological identity. The Fourth Circuit Court of Appeals agreed with him, citing Title IX and the Obama directive, and stopped Virginia from prohibiting Gavin from using the bathroom of his choice. The Supreme Court lifted the injunction, pending an appeal.

Two weeks ago, the Trump administration withdrew the Obama directive. This week, the justices vacated the Fourth Circuit ruling, and returned the case for additional arguments.

The second, and more important, issue has yet to be addressed in this case: Are civil rights a national matter, or one that the states can handle one by one?

Presidents, the Congress, and the courts answered this question with the passage of the Civil Rights Act of 1964: Civil rights are national. The Supreme Court has ultimate responsibility to resolve the bathroom dispute for the nation. Meantime, Massachusetts transgender students can rest assured that the law here is on their side.

Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University. His most recent book, published last year, is “American Constitutional History: A Brief Introduction.”