President Trump’s Executive Order is Still Unlawful

Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.”  The rollout of the Executive Order has been confused, and its implementation uneven.  Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries.  Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.

The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries.  Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country.  For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.

Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)).  This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries.  Section 212(f) says:

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)

By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens.  However, the Trump Administration has gone further.  The Trump Administration is turning aliens away from the border and returning them from whence they came.

Continue ReadingPresident Trump’s Executive Order is Still Unlawful

A Trifecta of Illegitimacy

Let’s review a few basics about the Rule of Law in the United States of America.  First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution.  In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law.  So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.

As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress.  The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations.  They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law.  The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.

Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways.

Continue ReadingA Trifecta of Illegitimacy

The Uncertain Future of Title VII LGBTQ Rights

Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may not discriminate against individuals based on their gender.  Whether Title VII protections extend to sexual orientation and gender identity is less clear.  Numerous federal courts have taken the position that sexual orientation and gender identity are not covered and it is up to the legislature to amend Title VII to explicitly provide protection from or redress for discrimination on these bases. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000).

The Equal Employment Opportunity Commission (EEOC) has been critical of the federal courts’ position.  Beginning in 2013, the EEOC issued a number of decisions finding that gender identity and sexual orientation discrimination were forms of “sex discrimination.” In the recent past, the EEOC has been the driving force behind seeking protection for employees from discrimination based on their sexual orientation and gender identity.  For this reason, many people expressed concern that the Department of Labor (DOL) took down the EEOC’s “Advancing LGBT Workplace Rights” document from their website the day President Donald Trump was elected.   Activists worry that the EEOC will not continue to advance LGBTQ protections under the new administration.  It is unlikely that Congress will advance any express protections based on gender identity or sexual orientation.

Reprieve may come from the courts.

Continue ReadingThe Uncertain Future of Title VII LGBTQ Rights
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