Professor Carolyn Shapiro was a guest on WTTW’s “Chicago Tonight” on February 8, 2017, for a discussion about the arguments heard by the Ninth Circuit Court of Appeals for and against lifting a temporary restraining order that halted the controversial travel ban imposed by one of President Trump’s recent executive orders.
First, kudos to the Ninth Circuit Court of Appeals for livestreaming the oral argument. The technology was not perfect, but opening the hearing to all citizens represents a needed step toward transparency in light of the controversy engendered by the Executive Order.
Second, the panel was prepared and peppered both sides with tough questions. The judges, despite their different ideological leanings (Judges Canby and Friedland were appointed by Democratic presidents, and Judge Clifton by a Republican), bolstered the image of an independent judiciary committed to the rule of law.
Third, despite the risks of predicting votes based on questions in oral arguments, the panel in my view is leaning towards recognizing that the State of Washington enjoyed standing to bring the lawsuit. At least two of the judges seemed convinced that the State could sue in its proprietary capacity because of its allegations that state universities would suffer if students and professors could not get into the country. In any event, the DOJ attorney conceded that individuals and their families who were directly affected by the Executive Order had standing, so that even if the State of Washington could not bring suit, other plaintiffs could.
Fourth, on the merits, there was little discussion of the question of the Order’s inconsistency with the 1965 statute, other than apparent agreement that the statute only prohibits country of origin categorization with respect to granting immigrant visas, and the President’s Order reaches far more broadly.
Religious Discrimination and Jewish Refugees
Writing as a legal historian, I want to say that President Trump’s Executive Order of January 27th regarding immigration and refugees was entirely unprecedented but it was not. What I can say is that looking back at immigration laws and policies, like those in the Executive Order, we can see how they were entirely misguided and driven by racist stereotypes. I briefly want to point to two such events involving Jewish refugees and immigrants.
In 1892 poor Eastern European Jewish refugees attempting to enter the United States spent months in U.S. quarantine under the mistaken belief that they were carriers of typhoid and later cholera. Such hysteria was driven by the wide-spread stereotype that such Jews were dirty, dangerous, and that they polluted the Christian body of the nation. Protecting the nation’s security was thus mapped on to the Jewish body. At the time, no one brought a habeas petition on behalf of those detained. Rather Jewish charities and others cooperated with officials hoping that the ban would soon be lifted.
AS A SCHOLAR OF PRESIDENTIAL POWERS, I am appalled at the lawlessness of Friday’s executive order on refugees. The Order flouts congressional authority, undermines settled rights of visa holders, and impinges on the Freedom of Religion. The President’s power in immigration matters is broad, but not limitless.
AS AN EDUCATOR, I am saddened by the Order’s categorical exclusion of individuals who have brought insights, vitality, and intelligence to this campus and so many others. We have learned from students from Syria, Sudan, Iraq, Iran, Libya, Somalia, and Yemen, and hope to continue to do so in the future. We are better for it.
AS A CITIZEN AND SON OF A REFUGEE, I am aghast at the repudiation of our country’s cherished past as a country of immigrants. Wealthier countries have the moral obligation to open their doors to those fleeing the carnage of the current fighting in Syria, Iraq, Somalia and Yemen. Refugees from those countries have committed no terrorist acts here, and there is no reason to believe that our current screening will be less able to filter out individuals posing a threat from those countries as opposed to others. All people are worthy of security and protection without regard to race, religion or country of origin.
I encourage interested faculty, staff, and students to join in the representation of those turned away at our nation’s doorstep. In the coming days, we will be disseminating information and holding workshops as to how you can help.
Dean Krent emailed the message above to Chicago-Kent students, faculty, and staff on January 30, 2017, under the subject line “President Trump on Immigration.”