Professor Jill Family: “Disrupting Immigration Sovereignty”

From Yale Law’s “Notice & Comment:”

“This plenary power narrative stifles our ability to think rationally about immigration law policy and to build consensus. The narrative should not be that of a zero-sum game. The choice is not between absolute, unchecked authority and no government power over immigration. There is middle ground. The plenary power doctrine has been weakened over the last 128 years, and many immigrants are subject to constitutional protection today. In terms of facts, immigration is not inherently a threat. Immigration has done wonderful things for our country and immigrants have contributed in a variety of important ways.

We need a new immigration narrative that more accurately reflects law and fact. This narrative acknowledges that there is space for both government interests and individual rights in immigration law. To make progress, we need to disrupt the mindset that does not allow immigration and security to comfortably occupy the same space. It is possible to be secure and to welcome immigrants while promoting individual rights. This new narrative promotes the idea that the sovereignty of the United States incorporates our exceptional dedication to individual rights. It recognizes that allowing for powers not supervised by the Constitution is its own threat to our sovereignty.

The new narrative recognizes that both individual rights and government interests are important in immigration law. The government has an important role to play in fashioning immigration law policy for the country. Security is an important consideration. But so is protecting individual rights. Preserving the United States includes uplifting its most fundamental values, including the principle that absolute government power is not desirable. Allowing for individual rights to be considered in immigration law does not weaken sovereignty; it strengthens our sovereignty by helping to define who we are. It also sends even unsuccessful immigrants home with an experience to relay that reflects American values.”


The Administration neither satisfactorily justified nor specifically explained the need for the “Travel Ban Executive Order.” The Obama Administration thoroughly vetted refugees. I have no doubt that they also carefully vetted visa applicants from all countries in the Middle East, North Africa, or any country in the world where terrorist movements are known to flourish. That’s probably why there were no known deaths from terrorist attacks by refugees in the U.S. for the past eight years.

There is no actual emergency to explain the type of “extraordinary measures” the Administration wants to put in place. That’s why most Federal Courts have been skeptical of the Administration’s motives.

The controversial Executive Order is also unnecessary. To date, no court has questioned the President’s authority to reduce FY 2017 refugee admissions to 50,000 (although arguably changes in the number of refugee admissions, either increases or decreases, should have been accompanied by statutory advance  “consultation” with Congress, and it certainly would be possible to question the wisdom, necessity, and humanity of such a reduction). According to some sources, those reduced refugee admission numbers will soon be exhausted, perhaps as early as March.

Consequently, unless the President takes action to raise the number again, the refugee admission program will effectively be “suspended” until the beginning of the next fiscal year, Oct. 1, 2017, without any further action on the Administration’s part.

Additionally, the Administration has never explained exactly what type of additional “vetting” they would add to that already in place. There is certainly nothing stopping Secretary of State Tillerson from improving visa screening in any way that he deems necessary, provided that the “improvements” are not just a ruse for discrimination. Additional questioning of refugees both abroad and at the border hardly requires an Executive Order. As long as the inquiry legitimately aims at discovering possible grounds of inadmissibility, it’s well within the existing authority of the Secretary of State and the Secretary of Homeland Security.

The use of questionable terms like “extreme vetting” and singling out particular Muslim majority countries for a complete ban is unnecessarily inflammatory. It antagonizes the Muslim world (without making us any safer), while sending a highly inappropriate message about the Muslim religion to the American public, thereby encouraging hate, discrimination, and separation.

While the majority of Americans appear wise enough to emphatically reject the Administration’s false message, there is a significant minority who have adopted or been convinced by the Administration’s largely “fact free” attack on refugees and the Muslim religion.

We as a nation could well be in for some difficult times over the next four years. To persevere and prosper, the vast majority of Americans will need to pull together toward common goals. The Administration could help achieve that end by ditching the unnecessary and inappropriately divisive rhetoric about refugees, Muslims, and immigrants.






Jill Family: Due Process On The Run

Professor Jill Family of Widener University Law writes in “Notice & Comment:”

“As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.”


I couldn’t agree more with Professor Family. I lived through lots of “haste makes waste” disasters in my Government career. Both Nolan Rappaport and I have pointed out, in our different ways, why it would be smart for the Trump Administration to do an “honest fix” for the Immigration Court system. A “level playing field” that concentrates on full due process in the Immigration Courts benefits everyone, including those who favor vigorous (yet fundamentally fair) immigration law enforcement.

But, sadly, after one week, this has all of the hallmarks of an Administration that will not be able to rise above its own intentionally divisive campaign rhetoric and its unfortunate biases. Just to be clear, as the events of the first week show, those biases have nothing whatsoever to do with the best interests or security of our country and everything to do with pandering to misguided nationalist/populist sentiment.

I suspect that eventually the entire Immigration Court System as well as the DHS “Administrative Removal Process” will end up in “receivership” in the Article III Courts, who will have to decide what to do with a supposed due process system that has been “drained” of both common sense and due process. But, given the failures of the last two Administrations to foster due process in the Immigration Courts, the apparent intention of the Trump Administration to mock established concepts of fairness and due process, and the failure Congress to act on long overdue reforms to establish an Immigration Court independent from the Executive, that might be the best thing for America.