President Trump’s asserts that the travel and entry ban is not anti-Muslim, it’s “anti-terror,” but it’s the same type of poorly disguised discrimination. The court has struck down similar bans that were “drawn against a background of racial and economic tension.” University of Illinois labor and employment relations professor Michael LeRoy, in an interview with News Bureau law and business editor Phil Ciciora, discussed the implications of President Trump’s immigration ban. The following are excerpts from that conversation.
Even though the White House had to clarify its stance at different times over the weekend, what does this change in immigration policy mean?
In the big picture, this executive order returns the U.S. to its pre-1965 posture. From 1921-65, the Immigration and Nationality Act had strict quotas by national origin, and it heavily favored European immigration. It was widely criticized – at home and abroad – for discriminating on the basis of national origin. In 1965, the law was amended. The national quota system was replaced with a series of categories – employment characteristics and labor markets; asylum for refugees, without regard to nationality; students; and so forth. In other words, the law replaced nationality with circumstances, contexts and personal factors.
Trump’s order is strictly categorical. It returns to the rejected framework of nationality discrimination. That’s deeply disturbing, especially since it also gives preference to persecuted Christians – and there are many tens of thousands – while completely banning more than 100 million Muslims, many of whom are also persecuted on the basis of their religion.
Are these changes sustainable in the long term?
There are already numerous lawsuits, and there will likely be a mix of outcomes, including settlements that stop short of a court judgment. But the main point is that Congress has delegated large discretion to presidents to apply and enforce the Immigration and Nationality Act. I think the real pressure won’t come from courts but from large employers – the employers that Trump is trying to bully in Twitter feuds. They appear to be willing to repatriate jobs and factories, but cutting off companies from global travel is so damaging that this might be more effective as a constraint than some court rulings. Microsoft has already moved large operations to Vancouver, British Columbia, due to U.S. immigration restrictions. Will Microsoft become a Canadian-headquartered company? I think it’s possible.
By bypassing Congress, is this issue likely ticketed for the Supreme Court?
It’s too early to say, but Trump’s compulsive habit of doubling down once he causes outrage – and chief strategist Steve Bannon’s nativist influence – probably means that the executive branch will not clean up the ban to avoid a date in the Supreme Court. Justice Anthony Kennedy tends to be pivotal in these cases. He was part of a very small majority in 2001’s Immigration and Naturalization Service v. St. Cyr. The government had begun to deport Enrico St. Cyr, a lawful, permanent resident after he pleaded guilty to a controlled substance violation. By law, this made St. Cyr deportable. Kennedy’s swing vote meant that “automatic deportation” could not occur – St. Cyr still had a right to petition a federal court for relief. But at other times, Justice Kennedy has voted to enforce harsh immigration laws, especially those written by states like Arizona, for example. So, he’s the wild card in the deck.