The launch of an impeachment inquiry in the House wasn’t the only bad news President Trump faced last week. By late Friday, three different federal courts had shot down three of the president’s more draconian policies aimed at shutting off the flow of migrants into the U.S. Whether the rulings will stand the inevitable appeals is unclear, but once again it is heartening that at least that part of our troubled constitutional system of checks and balances is holding up under the toughest challenge it has faced in generations.
Trump’s hunger for authoritarian power plays out in many ways but can be distilled into a generality: If he wants to do something, he cares not what the law, precedent or basic human decency might dictate. He just forges ahead and asks, who wants to try to stop me? When it comes to his heartless immigration policies, the challenge has been taken up by a loose consortium of migrants’ rights advocates, including the American Civil Liberties Union, the American Immigration Lawyers Assn., the Southern Poverty Law Center, the American immigration Council and regional organizations across the nation.
Basically, the administration’s approach to immigration enforcement is to deter migrants through often inhumane polices (beginning with separating children from their parents), while barring nearly all refugees, shutting off access to people from several Muslim-dominated countries and taking other steps that tell would-be immigrants, “Don’t bother, the U.S. government doesn’t want you.”
We agree that the current immigration system is broken. There is room for a discussion of how best to secure the border, how many people should be allowed to immigrate and whether family reunification should be deemphaisized in favor of admitting more people based on the job skills, investments and other benefits they could provide in the short term. In the meantime, people who have been living in the country without permission — more than half of them for more than a decade — shouldn’t live in constant fear of deportation. But instead of that good-faith debate and some reasonable legislative fixes, the nation is confronted with demands for an unneeded and ill-conceived border wall, immigrant communities are left living in fear, and people crossing the border have been abused by a policy that holds children for months at a time in detention centers, despite broad advice from experts that it is psychologically damaging to do so.
The cascade of court defeats began early Friday when U.S. District Judge Dolly Gee ruled in Los Angeles against the administration’s “Kafkaesque” plan to undo the 1997 Flores Agreement that limits the length of time and conditions under which the government may hold migrant minors. Gee, who is overseeing compliance with the Flores agreement, found that the new regulations, which would have allowed potentially years-long detentions of children with their families, failed to meet obligations the government had already agreed to. Administration officials “cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets,” Gee ruled. “That violates the rule of law. And that this court cannot permit.”
In a separate case involving how Immigration and Customs Enforcement targets jail inmates for deportation, U.S. District Judge Andre Birotte Jr. in Los Angeles held that the government must stop relying solely on databases that included “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.” Birotte also ruled that ICE cannot issue “detainers” — which involve holding inmates after their scheduled release dates so they can be picked up for deportation — in states that do not authorize such cooperation. Under that system — which preceded the Trump administration and which judges have ruled violates the 4th Amendment prohibition against unreasonable searches and seizures — ICE has issued detainers for hundreds of people later deemed ineligible for deportation, including more than 40 U.S. citizens.
In the third decision, U.S. District Court Judge Ketanji Brown Jackson in Washington, D.C., blocked the administration’s proposed policy to expand to the entire country the so-called expedited removal process that bypasses immigration courts. Instead, expedited removal will continue to apply only to migrants caught within 100 miles of a border after entering the country illegally within the previous two weeks (the new policy would have changed that to two years). Jackson wrote that the challengers to the policy were likely to win their argument that expanding the policy was “arbitrary and capricious” and didn’t consider the effect on “settled documented noncitizens and their communities.”
Will these decisions hold? That’s hard to predict. But at a minimum, it’s heartening that the courts are tapping the brakes as Trump and his xenophobic appointees frantically erect barriers to immigration — both legal and illegal — instead of working with Congress to craft durable fixes to the problems in the system.