University of Illinois labor and employment relations professor Michael LeRoy is an expert on immigration and employment policy. In an interview with News Bureau business and law Editor Phil Ciciora, LeRoy discusses the implications of President Trump’s controversial immigration ban.
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.
The problem with this national-origin criterion was its immutability. It didn’t allow consideration of the alien’s merit or demerit, skills or whether the person was being subjected to persecution for religious or political reasons. It was strictly categorical. 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.
Some nations also use immigration laws to attract the best and brightest. It’s a competitive advantage for Canada and Australia. After Trump’s order, some or many Iranian and Iraqi students, scientists and doctors, for example, might rethink the American dream and make it the Canadian dream.
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. Ironically, President Trump lambasted President Obama for executive orders that deferred deportation proceedings for “Dreamers”– people in their teens through 30s who were born out of the U.S. and brought to the U.S. as children without authorization.
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.
Are there any similar historical analogs?
Sadly, yes, though nothing exactly like this. Wong Kim Ark was a U.S. citizen born in San Francisco to Chinese noncitizen parents. At age 20, he left the U.S. to seek a wife in China. By the time he returned, the U.S. amended the Chinese Exclusion Act. Like Trump’s order, the law barred entry to everyone coming from China except diplomats. The Supreme Court ruled that Ark, though of Chinese descent and also traveling from China, could not be denied re-entry because he was born on U.S. soil.
Trump’s order is also similar to another Supreme Court case, Takahashi v. Fish & Game Commission, from 1948. Deep prejudice against the Japanese led California to limit commercial fishing licenses to citizens. The intent was to drive off the Japanese population in the state.
The first version of the law literally outlawed licenses to the Japanese, but lawmakers realized this was so blatantly discriminatory that courts would overturn it. So the law was amended to have the same effect – it banned all noncitizens, which in California meant that the ban amounted to an outright prohibition against the Japanese. Takahashi was a noncitizen, permanent resident in today’s terms, a green card holder.
Compare this to President Trump’s assertion that the travel and entry ban is not anti-Muslim, it’s anti-terror. It’s the same type of poorly disguised discrimination.
The court struck down the ban, explaining that it was “drawn against a background of racial and economic tension.”
By bypassing Congress, is this issue likely ticketed for the Supreme Court, where it awaits a 4-4 court? Or will a Trump appointee likely be seated by the time the case reaches the 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. But 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.
Editor’s note: The original version of this story misidentified Wong Kim Ark. The error has been corrected in the online version.
