//  3/16/17  //  Topic Update

Trump’s revised (3/6/17) and initial (1/2717) executive orders on immigration have drawn substantial commentary 

• Legality
• ACLU National Legal Director David Cole argues that Trump’s initial executive order violated the Establishment Clause; counterpoint, Peter Spiro argues in NYT even a Muslim ban would be constitutional under the plenary power doctrine; Adam Cox responds to both arguing that a Muslim ban would be unconstitutional because the plenary power doctrine does not preclude protection from invidious discrimination under 5^th Amendment equal protection or the Establishment Clause
• Other commentators have argued the revised or initial orders were unlawful because they violate the INA, which prohibits discrimination in issuing visas on the basis of nationality (Josh Blackman disagrees on Lawfare regarding the revised order); deny due process (Josh Blackman disagrees regarding the revised order); violate equal protection, either under a test for invidious discrimination (Ilya Somin’s view) or lack of rational basis; or violate principles of religious freedom (nice collection of links on these areas here).
• Daphne Eviatar, Jennifer Daskal and David Cole argue the revised ban is still vulnerable to an Establishment Clause challenge.
• Aziz Huq argues that Trump is taking advantage of a judicial tradition of deference based on expertise while openly basing his policy on populism instead, leaving open question of how and if balance-of-powers system will adapt.
• Jack Goldsmith believes that the initial order had a strong legal basis, but the chaotic rollout and Trump’s antagonistic tweets lay the groundwork to blame the judiciary for future attacks.
• Line-by-line comparison between the first and second executive orders. The new order excludes green-card holders/lawful permanent residents and existing visa-holders, lets noncitizens with “significant contacts” seek entry at discretion of CBP, and omits the priority rule for minority religions. Iraq is also off the list and Syrian refugees are not singled out.
• Judicial review
• Lawrence Tribe, Erwin Chemerinsky, Heather Gerken, David Golove and others respond to Senior Policy Advisor Stephen Miller’s statement that “there is no such thing as judicial supremacy."
• Addressing concerns about judges’ power over a noncompliant administration, Nicholas Parrillo argues on Just Security that courts have successfully relied on the shaming power of contempt findings while leaving the door open to impose actual sanction.
• Steve Vladeck urges the Supreme Court to grant cert in Castro v. Homeland Security, which could leave individuals detained under the executive order without judicial review in the 3rd Circuit
• Is standing going to be point of contest? The elasticity of standing can prevent courts from intervening in political issues or allow them to curb executive overreach. In Washington v. Trump and U.S. v. Texas, states argued they were injured by executive immigration policies. Do these cases rise and fall together?
• Is Josh Blackman right that the new order leaves slim pickings for good plaintiffs now that green-card holders are excluded and noncitizens with “significant contacts” can petition?

Tags: