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Excerpted From: Michael H. LeRoy, The President's Immigration Powers: Migratory Labor and Racial Animus, 75 New York University Annual Survey of American Law 187 (2020) (368 Footnotes) (Check Library for Full Document)

MichaelHLeRoyAlthough presidents have issued 5,884 executive orders, courts have invalidated only a few. A President has plenary powers over immigration, an outgrowth of Article II powers to conduct foreign affairs and to faithfully execute laws. Courts often decline jurisdiction in challenges to immigration actions.

For nearly 300 years, people have come from around the world to the United States for work. Some as slaves, some as indentured servants-- involuntary and voluntary--some as Mexican peons or Chinese coolies, some as free people seeking refuge or asylum, some who unlawfully entered the United States as children or adults, and others with an employment visa. Most have been people of color (and for significant periods of American history, some Europeans have been treated like people of color).

There are good reasons not to refer to these dislocated people as "immigrants." That term refers to a person's voluntary intention to make a permanent residence in the United States. The voluntary element does not apply to slaves, forcibly removed from Africa and resettled in America. The Constitution referred to their journey as a "migration." The permanence element does not apply to Central Americans and Haitians who have Temporary Protected Status (TPS). However, many have resided continuously in the United States since the 1990s, they have been approved to work, and now face deportation from President Trump. Despite the differing circumstances, however, these examples bear many similarities to how we typically understand what it means to be an immigrant. Over time, they have worked, set down roots, married and raised families, and established a permanent and voluntary presence. Whatever their legal status and length of presence in the United States, foreigners have caused recurring economic insecurity for American workers, particularly when immigration has been framed in racial terms. For these reasons, I use the term "migratory labor," which applies to people who have come to work in America under a wide variety of circumstances, and references their role once arriving in the United States as opposed to their motivation for immigration.

I use empirical analysis to measure judicial review of President Trump's anti-immigrant orders, proclamations, and policies. These employment-related actions include the travel ban largely affecting Muslims, the "Hire American" executive order revising the H-1B visa, rescissions of President Barack Obama's Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) actions that allowed certain unlawful immigrants to qualify for temporary employment permits, and similar rescissions of TPS (Temporary Protected Status) for a wide range of long-time residents from Central American and other countries. These immigration actions, which either directly or indirectly affect the labor market in the United States, are challenged in twenty different cases, some that consolidate several lawsuits. As of this writing, the Trump Administration has lost most rulings. The emerging trend suggests that the President has overreached with respect to his constitutional authority while precipitating precedents that limit presidential powers.

My study only begins here: I analyze this emerging trend through a long historical lens. President Trump's racially tinged approach compares to actions taken by other presidents. I begin by exploring the Constitution, specifically the provisions which institutionalized slavery. I then examine presidential action relating to migratory labor, beginning with George Washington. Twelve presidents owned slaves, one of whom traded in slaves while in office. Some early presidents believed that neither free black people nor slaves could assimilate in white America and used their office to pursue deportation of black people to Africa. Other presidents used their Article II powers to enforce the fugitive slave provisions of the Constitution.

The Civil War led to the abolition of slavery, but peonage and other forms of debt labor soon took its place. These newer servitudes exploited migrants of color--initially, Chinese and Mexican workers. Additionally, White workers who felt threatened by the otherness of these foreigners organized unions and even a political party. In time, their racial animus traveled to the White House, where presidents gave voice and action to their intolerance. From 1875 through 1952, Congress enacted racially-tinged immigration laws that excluded, restricted, and catalogued foreigners who competed in labor markets with white Americans.

Presidents rarely stood against these laws. Occasionally, presidents were political agents for white workers who advocated immigration restrictions to preserve racial purity, superiority, separation, and exclusion. In one jarring example, an executive order forcibly removed Japanese American citizens from their homes and jobs and led to their incarcerated labor.

My study concludes: (1) President Trump's approach to immigration follows numerous presidents whose treatment of migratory labor was motivated by racial animus; (2) most of President Trump's immigration orders that affect employment fall outside the Constitution's Article II powers over foreign affairs, and many courts have not dismissed lawsuits that challenge these actions; and (3) as courts adjudicate President Trump's immigration orders and policies relating to employment, presidential powers over immigration erode significantly.

B. Organization of This Article

Part II examines President Trump's immigration orders and administrative actions and their effects on migratory labor. Part II.A puts the President's broad immigration powers into context. Part II.B examines three areas where this President's actions have affected employment: (1) the President's executive orders, specifically the "travel ban" and a "Hire America" policy that regulates H-1B visas; (2) the administration's work-related immigration policies, including the termination of two deferred enforcement programs--DACA and DAPA the rescission of TPS for Central Americans and Haitians; (3) this administration's practices--distinguished from its policies--that implicate the same employment authorization effect. Part II.C analyzes litigation data for the cases in Part II.B. Subpart (1) explains how the sample was created. Subpart (2) provides data and fact findings. Table A shows the laws used by plaintiffs to challenge the President's actions. Table B shows how often (1) courts invoke or deny jurisdiction, (2) plaintiffs win, and (3) courts issue or continue injunctions. I conclude this discussion with four key fact findings.

Parts III through V put these findings in historical context. Part III covers the founding of the republic, Part IV explores the modern era of federal regulation of immigration, and Part V focuses on the contemporary period, running from 1952 through 2016.

Part VI synthesizes the two tracks of my analysis--one trained on President Trump, the other exploring how presidents since Washington enforced policies for migratory labor. My main conclusion is that President Trump's xenophobic approach has many historical precedents but is incompatible with current immigration law.

[. . .]

The history of presidential immigration powers divides into two periods. The longest time, running from George Washington to Franklin Roosevelt, was largely marked by restrictions and exclusions arising from racial animus directed at migratory laborers. The most recent time began with Truman and ended with Obama. Early presidents enforced the Constitution's fugitive slave provision. They explored diplomacy to deport free black peoples to Africa. From the 1880s through 1940s, presidents acted with Congress to restrict laborers from China, then Japan, and eventually all of Asia, and severely limit the flow of poor “nonwhite” European immigrants. Immigrants were blamed for lowering standards for American workers. Roosevelt's order caused American citizens to lose their jobs and instead work while incarcerated. Truman and Eisenhower explicitly challenged the racial bias in this long history and used their limited powers to move the nation toward a more pluralistic approach to immigration--one that would befit the ideals of American democracy. They set the tone for a comprehensive overhaul of immigration policies.

Passage of the 1965 Immigration and Nationality Act marked a watershed. Thereafter, the nation undertook ambitious policies to promote immigration from all parts of the world. Presidents of both parties, except Richard Nixon, embraced this sweeping legislation. They used executive orders and other administrative powers to permit entry to hundreds of thousands of people displaced by war, political upheaval, and natural disasters. They used prosecutorial discretion to extend the stay of these temporary migrants and created a legal mechanism for their lawful employment. After an amnesty law was passed in 1986, presidents of both parties used their powers to create temporary legal status for children, and eventually, for parents. Family unification was more important to presidents such as Ronald Reagan, George H.W. Bush, and Barack Obama than using their powers to deport large numbers of family members.

Against this backdrop, I examine President Donald Trump's immigration orders that affect employment relationships. His presidency is premised on the theme of “America First.” This is not new: My research shows that it parallels the substance and tone of presidents from the 1880s through the 1940s. Trump offers a clear alternative to the pluralistic vision and structure of the 1965 Immigration and Nationality Act. For now, however, that law remains in effect--and this explains, in brief, why courts variously restrain his anachronistic immigration actions.

What do my findings and historical analysis mean for the foreseeable future? First, when President Trump uses presidential powers for immigration, he often conflates national security with job security for Americans. 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 TPS 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. This study's finding that plaintiffs relied heavily on the APA and the Fifth Amendment's Due Process Clause signifies that President Trump appears to have expanded presidential immigration powers in ways that implicate individual rights under the Constitution and other U.S. laws, such as the Immigration and Nationality Act.

Second, President Trump is eroding executive powers over immigration. He is careless in using executive orders to change immigration policies that are codified as law. As a result, he has undermined common jurisdiction defenses that presidents usually assert with success. His haste to implement orders has affected individuals and their employers, including people who are authorized to work under the INA. His actions have caused harm with little or no process. Some courts have sharply rebuked the President's callow, impatient, and damaging actions by ordering injunctions. A few have explicitly suggested that he acted with racial or religious animus. To the extent that these cases become precedents, future courts might apply strict scrutiny to presidential immigration actions, as they do for legislative enactments. This would amount to a major concession of executive power.

Third, courts have closely scrutinized his immigration policies that affect employment. They have enjoined most of his actions. This pattern is unprecedented, though it is observable mostly at the district and appellate court levels. The open question is whether the Supreme Court will allow these lower court rulings to stand or will modify them--perhaps to the point of entirely reversing them. Certainly, the Court can apply deferential precedents from the age of racial animus. On the other hand, a conservative majority on the Court overruled Korematsu in Trump v. Hawaii. The majority did not need to take this strong measure to decide the case, but it signaled some inclination to limit bias in a President's use of Article II powers. Whether the Supreme Court, Congress, or voters have the most influence on presidential immigration powers is an unsettled nomination, but America is at a crossroads.

Professor, School of Labor and Employment Relations, and College of Law, University of Illinois at Urbana-Champaign. 

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