From Immigration to Executive Orders to Judicial Review: Miracle or Not?

[The following guest post is from Jacques Condon, the alumni guest blogger for October 2016.] In the movie Die Hard, an enterprising police office played by Bruce Willis thwarts a large-scale robbery attempt (of, all things, bearer bonds). He does it barefoot, and clandestinely. But he also has aid from outside law enforcement which, unwittingly, is also used by the bad guys to their advantage. According to the lead bad guy, played by Alan Rickman, when asked what miracle will crack the safe to expose its riches, he responds: “You asked for miracles, Theo, I give you the F.B.I.”

The Die Hard “miracle” is rolled out for full entertainment value, and, to be sure, even Hollywood miracles that can be traced to non-fiction are sometimes hidden by the misnomers of “Based on a True Story” or “Taken From Real Events,” which allow for artistic license.

Yet this same point — the artistry of miracles — continually shows up in explaining and describing judicial rhetoric.

Nowhere has this been more than in the sound bites surrounding the President’s executive order on immigration.

Continue ReadingFrom Immigration to Executive Orders to Judicial Review: Miracle or Not?

A New Era: The Rule of Law in the Trump Administration

Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate.

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Big Dreams and Hidden Harms

One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.”  The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.

It is not difficult to be sympathetic to the plight of the Dreamers.  As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012.  However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English.  They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult.  Moreover, they were not morally complicit in their parents’ decision to enter the United States.  Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.

Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States.  Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency.  To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record.  The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.

Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive.

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