CHAMPAIGN, Ill. — As courts continue to adjudicate President Donald Trump’s executive orders related to immigration and employment, a new study from a University of Illinois expert who studies immigration law and labor issues says presidential powers over immigration have been significantly hamstrung by the judicial branch.
Research by Michael LeRoy, a professor of labor and employment relations at Illinois, indicates that plaintiffs won all or part of 89 percent of the rulings in cases that consider Trump’s immigration orders that affect employment relationships.
“The results suggest that President Trump has overreached in his use of executive immigration powers, violating statutory and constitutional requirements,” LeRoy said. “Most of President Trump’s immigration orders that affect employment fall outside the Constitution’s Article II powers over conducting foreign affairs. The net result is that by overreaching with respect to his constitutional authority, President Trump has precipitated new legal precedents that function to limit his executive powers, thereby resulting in a significant erosion of presidential authority over immigration.”
LeRoy’s research shows that the Trump presidency’s “America First” theme closely parallels the substance and tone of presidential approaches to immigration from the 1880s through the 1940s.
“President Trump’s immigration policy is clearly at odds with the pluralistic vision and structure of the Immigration and Nationality Act of 1965,” he said. “For now, that law remains in effect – and it explains, in brief, why courts have acted as a check on his immigration actions.”
Twenty consolidated lawsuits have been filed to challenge the travel ban, the rescission of the Deferred Action for Childhood Arrivals program and other immigration issues in the two years since Trump took office. LeRoy analyzed results from first-level and subsequent rulings and found that plaintiffs relied heavily on the Administrative Procedure Act and the Fifth Amendment’s Due Process Clause, which were cited in 75 percent and 70 percent of cases, respectively. In 77 percent of the cases involving a request for an injunction, courts granted some form of relief to plaintiffs.
The results indicate that Trump appears to have attempted to expand presidential immigration powers in ways that implicate individual rights under the Constitution and other U.S. laws, LeRoy said.
“When using executive powers for immigration, President Trump often conflates national security with jobs for Americans,” LeRoy said. “In doing so, he loses sight of the Immigration and Nationality Act of 1965. He also misunderstands that immigration law embeds significant employment regulations, including registration obligations and work privileges for undocumented individuals in the DACA program and recipients of temporary protected status. At a minimum, he is obligated by the Administrative Procedure Act to provide a formal notice and comment process for some of these actions.”
But by being careless in using executive orders to change immigration policies that are codified as law, Trump has managed to undermine jurisdiction defenses in lawsuits, the paper says.
“His haste to implement orders has affected individuals and their employers, including people who are authorized to work lawfully under the Immigration and Nationality Act,” LeRoy said. “Those actions pose substantial harm with little or no process. Some courts have sharply rebuked the president’s actions by ordering injunctions – and a few have explicitly suggested he acted with racial or religious animus.
“The net effect is that President Trump has eroded and undercut his own executive branch powers over immigration every step of the way.”
The open question is whether the U.S. Supreme Court will allow these lower court rulings to stand or modify them to the point of entirely reversing them, LeRoy said.
“Certainly, the Supreme Court has a wealth of precedents from the pre-Truman age of racial animus,” he said. “The recent confirmation hearing for Justice Brett Kavanaugh, who is widely viewed as a key fifth vote in a conservative bloc on the court, showed that he favors a highly deferential view of the presidency. On the other hand, a conservative majority on the court overruled the Korematsu precedent in Trump v. Hawaii. The majority did not need to take this strong position to decide the case, but in doing so signaled some inclination to limit racial bias in a president’s use of Article II powers.
“Whether the Supreme Court, Congress or voters have the most influence on presidential powers over immigration is an unsettled question, but we’re a nation at the crossroads regarding immigration.”
Editor’s notes: To contact Michael LeRoy, call 217-766-5012 (cell); email mhl@illinois.edu.
The paper “The President’s immigration powers: Migratory labor and racial animus” is available from the News Bureau.
