Immigration

President Trump has begun a radical transformation of immigration policy—as witnessed in executive orders, threats aimed at sanctuary cities, and calls for drastic efforts to deport undocumented migrants.

A Rough Guide to Amicus Briefs In the Travel Ban Cases

4/24/17  //  Latest Developments

Take Care offers a quick, rough breakdown of the amicus briefs filed last week concerning President Trump's revised executive order.

Take Care

Trump Is Weakening His Only Defense of the Sanctuary Cities Order . . . by Enforcing It

4/24/17  //  Commentary

DOJ argues that Trump's orders threatening sanctuary cities can't be challenged because they remain speculative. But a recent volley of menacing letters from DOJ to sanctuary cities and counties, and to the State of California, has blasted a hole in DOJ's own defense.

Nikolas Bowie

Harvard Law School

The Muslim Ban: Answering Tough Questions About Motive

4/21/17  //  In-Depth Analysis

The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.

Richard Primus

University of Michigan Law School

The Attorney General, Hawaii Statehood, and National Injunctions

4/21/17  //  Quick Reactions

The AG's comments denigrating Hawaii statehood are objectionable for many reasons. But don't overlook his underlying complaint about national injunctions—which conservatives spent years developing and have suddenly, painfully discovered can be used against them.

Joshua Matz

Publisher

A Different View of Why the Muslim Ban Violates the Establishment Clause

4/20/17  //  Commentary

A diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—has filed an amicus brief challenging the Muslim Ban. Here's what you need to know.

Joshua Matz

Publisher

Information Wars Part V: Immigrant Crime Disinformation

4/20/17  //  Commentary

In its war on information, the Trump administration is not just trying to hide the facts. It’s also trying to misrepresent them.

Leah Litman

U.C. Irvine School of Law

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, Trump Administration suspended reports on sanctuary cities amid accuracy questions.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, Attorney General Jeff Sessions announced the "Trump Era," heralding increased enforcement of immigration offenses. On Take Care, Jennifer Chacón argued that states can innovate effectively to protect human rights in the face of problematic ICE arrests. Also on Take Care, Joshua Matz and Leah Litman argue that Sean Spicer's deplorable remarks about the Holocaust must be seen in the context of Trump Administration policies on Syria and immigration.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, Hawaii asked the Ninth Circuit for full court review of the revised entry order. The Fourth Circuit, in an unusual move, agreed to hear the Trump Administration's revised entry order appeal en banc, with oral arguments set for May 8.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Sanctuary cities may become sanctuary states.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Litigation challenging President Trump's revised immigration order continues in courts. Questions over President Trump's campaign statements and intent continue to linger.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

DHS is arresting immigrants at local courthouses. President Trump's proposed wall is no longer looking like a certainty.

Take Care

Improper Commands from President Trump's Employees?

3/16/17  //  Commentary

Key White House personnel might be violating important limits on their lawful authority.

Nikolas Bowie

Harvard Law School

An Unconstitutional Threat to Sanctuary Cities

3/21/17  //  Commentary

DOJ argues that courts can't hear challenges to Trump's executive order threatening to punish sanctuary cities. Its arguments are wrong and prove that Trump's policy is illegal.

Nikolas Bowie

Harvard Law School

No Peeking? Korematsu and Judicial Credulity

3/22/17  //  Commentary

The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.

Ian Samuel

Harvard Law School

Leah Litman

U.C. Irvine School of Law

McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)

3/27/17  //  In-Depth Analysis

The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.

Leah Litman

U.C. Irvine School of Law

A Powerful Statement by the California Chief Justice

3/20/17  //  Quick Reactions

In urging the Attorney General to cease using state courthouses as bait for undocumented migrants, the California Chief Justice displayed admirable bravery and commitment to the rule of law.

Laurence H. Tribe

Harvard Law School

Judge Kozinski Asked The Wrong Question & Got The Wrong Answer

3/20/17  //  Commentary

Judge Alex Kozinski, among others, has argued that President Trump's campaign statements are irrelevant to assessing the Muslim Ban. But his argument starts with the wrong question, and inevitably reaches the wrong answer.

Amir Ali

Roderick & Solange MacArthur Justice Center

Justice Gorsuch, Executive Power, And Muslim Ban 2.0

3/20/17  //  In-Depth Analysis

A careful review of Judge Gorsuch's record reveals strong reason to believe that he would vote to uphold President Trump's revised Muslim Ban (and potentially many other executives abuses, too).

Leah Litman

U.C. Irvine School of Law

Amir Ali

Roderick & Solange MacArthur Justice Center

En Banc Review? How Can I Say No?

3/30/17  //  Quick Reactions

When asked by the Fourth Circuit, the Government said it wanted to have the full court consider its Muslim ban. But the Government probably did not mean it.

Amir Ali

Roderick & Solange MacArthur Justice Center

An Update on DACA

3/31/17  //  Latest Developments

The President's words indicate he is open to honoring DACA (the Deferred Action for Childhood Arrivals program). But his actions (and inactions) suggest otherwise.

Leah Litman

U.C. Irvine School of Law

The Establishment Clause and the Muslim Ban

3/18/17  //  Commentary

Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban

Michael C. Dorf

Cornell Law School

The Standard Fare of Judges: What Happens When the Judiciary Does What It Always Does

3/28/17  //  Commentary

The Muslim Ban litigation does not involve a "revolt of the judges." As proven by a survey of major and minor cases from the legal canon, this litigation involves only the standard fare of judging.

Daniel Deacon

U.C. Irvine School of Law

Leah Litman

U.C. Irvine School of Law

When Due Process Reliance Defenses May Bar Enforcement

3/24/17  //  Commentary

In limited but vital ways, those who relied on Obama-era immigration and marijuana non-enforcement policies should be protected against sudden shifts in federal policy under President Trump.

Zachary Price

U.C. Hastings College of the Law

The President’s Dilemma

3/17/17  //  Commentary

An emergency appeal on the Muslim Ban may be both rational and his worst outcome.

Amir Ali

Roderick & Solange MacArthur Justice Center

The Trump Administration’s Immigration-Related Detentions

3/24/17  //  Commentary

The Supreme Court is considering a major constitutional challenge to federal immigration detention policies. Trump’s recent executive orders make that case even more significant.

Leah Litman

U.C. Irvine School of Law

Embracing Federalism

3/16/17  //  Commentary

It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies

Erwin Chemerinsky

U.C. Irvine School of Law

The First Amendment Belongs Only to Americans? Wrong

3/29/17  //  Commentary

The First Amendment makes America great for everyone, not just for citizens.

Nikolas Bowie

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose

4/6/17  //  Commentary

Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.

Joshua Matz

Publisher

Reliance Defenses in the Trump Era and Beyond

3/23/17  //  Commentary

The transition to President Trump has massively shifted federal enforcement priorities. Does the Constitution protect people who relied on Obama's immigration, healthcare, or marijuana policies?

Zachary Price

U.C. Hastings College of the Law

The Imperatives of Structure: The Travel Ban, the Establishment Clause, and Standing to Sue

4/3/17  //  In-Depth Analysis

In the Fourth Circuit travel ban appeal, DOJ contends that the plaintiffs lack standing. But a deeper examination of the Establishment Clause proves that the plaintiffs’ claims must be heard on the merits.

Ira C. Lupu

George Washington University Law School

Peter J. Smith

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Information Wars Part I: The Challenge To The Census

4/13/17  //  Commentary

The Trump administration has enacted several policies to conceal, subvert, or manipulate information. It has retracted a proposal to add LGBTQ identification to the U.S. census and eliminated LGBTQ identification from HHS surveys. These policies and others attempt to deny the existence of a problem by disappearing the (inconvenient) facts.

Leah Litman

U.C. Irvine School of Law

California v. DOJ on Immigration Enforcement

4/11/17  //  Commentary

An exchange of letters between the California Chief Justice and Attorney General Sessions offers valuable lessons for states considering immigrant protective policies that respect human rights and dignity (but might annoy the Trump Administration).

Jennifer Chacón

U.C. Irvine School of Law

Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous

3/23/17  //  Commentary

The Attorney General’s embrace of private prisons is a victory for the industry, but it threatens the safety of correctional officers and prisoners.

Chiraag Bains

Harvard Law School

Trump's Immigration Policy & The Cross-Border Shooting Case

3/30/17  //  Commentary

President Trump's immigration enforcement policy has massively raised the stakes in Hernandez v. Mesa, where the Supreme Court is considering a cross-border shooting by a U.S. agent.

Leah Litman

U.C. Irvine School of Law

The Attack on American Cities

4/7/17  //  Commentary

Trump's anti-urban rhetoric has fanned the flames of a war by state governments against progressive cities. We see this in battles over sanctuary cities, LGBT rights, gun regulation, employee rights. The time has come for a campaign on behalf of city power.

Richard C. Schragger

UVA School of Law

Why Courts Have Probed Trump’s Motives for the Travel Ban

4/4/17  //  Commentary

Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.

Joshua Matz

Publisher

Those Who Do Not Know History

4/12/17  //  Commentary

On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.

Leah Litman

U.C. Irvine School of Law

Joshua Matz

Publisher

Reinvigorating Civil Rights in the Era of Trump

4/13/17  //  Commentary

Given the nativist overtones of his campaign and his administration’s signature policies — from the Muslim ban to an immigration crackdown that equates being a foreign-born minority with criminality — Trump has exploded the fiction that we live in a post-racial society.

Chiraag Bains

Harvard Law School

Motive Matters in Assessing the Travel Ban

3/20/17  //  Commentary

To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.

Richard Primus

University of Michigan Law School

Desuetude and Immigration Enforcement

3/16/17  //  Commentary

It's time to force Congress back into the conversation about immigration enforcement. Here's how.

Jamal Greene

Columbia Law School

Sherley You’re Joking

3/27/17  //  Commentary

A confused and poorly reasoned decision by the U.S. Court of Appeals for the D.C. Circuit shouldn’t be read to shield agencies from judicial review whenever they happen to be following an executive order.

Nick Bagley

University of Michigan Law School

See You In Court 2.0

3/16/17  //  In-Depth Analysis

Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.

Leah Litman

U.C. Irvine School of Law

The World Is Not Made Brand New Every Morning

3/20/17  //  Commentary

Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.

Jonathan Taylor

Gupta Wessler PLLC

Trump’s Approach to Crime & Punishment

3/16/17  //  Commentary

The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.

Chiraag Bains

Harvard Law School

Youngstown Zone Zero

3/16/17  //  Commentary

Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

Faith in the Ninth Circuit

3/16/17  //  Commentary

An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.

Daniel Hemel

University of Chicago Law School

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

This week, reports emerged that ICE is targeting sanctuary cities with increased enforcement operations. This, and other Trump Administration immigration policies, has an immediate harm on immigrants nationwide. ICE has also been brought to court for allegedly unconstitutional searches at the border.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

As Trump Administration immigration enforcement cracks down, fear among immigrant communities is up, as is push back from state judges to protect their courthouses.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

The week was rich with analysis at Take Care and beyond of President Trump’s revised entry ban. The Administration has asked the Fourth Circuit to expedite the appeal. In the meantime, diplomatic cables reveal “extreme vetting” policies may be ramping up.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Litigation over President Trump's revised travel ban order continues: a federal judge in Hawaii issued a preliminary injunction against the order, and the Fourth Circuit will take initial en banc review of a similar injunction.

The Story Thus Far: Immigration

3/16/17  //  Daily Update

President Trump has issued two very controversial executive orders, both banning entrants from selected Muslim-majority nations. Here are some useful analyses of the story thus far.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

As Trump Administration immigration enforcement cracks down, fear among immigrant communities is up, as is push back from state judges to protect their courthouses.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

President Trump's continued focus on sanctuary cities poses legal problems, as cities like Seattle bring challenges on anti-commandeering grounds. In the meantime, the Trump Administration's immigration agenda is exacting an immediate harm.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

This week, commentators focused on the constitutionality of federal threats to withdraw funds from sanctuary cities.