The Policy and Advocacy Team uses a number of tools to track legislation and stay abreast of the federal and state level climate on topical issues identified through the NASPA Public Policy Agenda. However, NASPA’s strategy has shifted over the past year and a half to account for the rapid fire of federal-level administrative policy changes since the start Trump administration. While administrative policymaking is common during a partisan presidential transition, sources suggest an unprecedented number of executive orders put forward and regulations rolled back to date. In October 2017, CNN reported that President Trump was on track to sign more executive orders than any president in the last 50 years, as analyzed through data available through the Federal Register, and in January 2018 Politico relayed an announcement from the President, claiming that his administration had repealed 22 regulations for each new rule issued.
The impact of increased administrative policymaking has trickled down to our nation’s judicial system through state-level lawsuits, federal-level court injunctions, and corresponding proceedings, many of which have the possibility of lasting from months to years. In the last few months several of these judicial proceedings have come to a head through developments both in state and federal-level rulings, some of which have resulted in surprising outcomes. This post is the first in a series of judicial updates that provides an overview of current developments and corresponding implications for higher education and student affairs professionals. Today’s post will focus on immigration and international students.
In February 2018, when the original March 5 expiration deadline set by President Trump when he discontinued the Deferred Action for Childhood Arrivals (DACA) in September 2017 was quickly approaching, immigration advocates and the higher education community turned to the courts to seek protection. Immigration advocates challenged the constitutionality of President Trump’s decision to end the DACA program and were successful in gaining injunctions from lower courts that allowed existing DACA recipients to re-apply for extension of their DACA protections. The Trump Administration urged the Supreme Court to expedite a ruling regarding the constitutionality of the expiration announcement . The justices declined, allowing court injunctions which rose from the 2nd and 9th District Courts of Appeals to play out in federal court. These court injunctions prevented the program from terminating and allowed current recipients to apply for renewal.
While the decision has not yet reached the Supreme Court for a final ruling, this past week, the Federal District Court for the District of Columbia ruled that the legal reasoning provided by the Trump Administration to support their decision to end the program was “virtually unexplained.” The DC District Court gave the Department of Homeland Security 90 days to better explain the need for program termination. After the 90 day stay, the United States Citizenship and Immigration Services (USCIS) will be required to once again start accepting new DACA applications, which it has not done since the expiration announcement in September 2017, therefore the outcome of this case is significant. As following the last two court injunctions, USCIS is continuing to accept application renewals.
Last week Supreme Court Justice Neil Gorsuch, a Trump administration pick known for voting conservatively, sided with the Supreme Court’s liberal justices in a case regarding the possible deportation of an immigrant convicted of residential burglary. The government sought his deportation under a "violent crime" immigration law, though neither of James Garcia Dimaya's crimes involved violence. The statute defines a violent crime as one involving force or the "substantial risk" of force. The Supreme Court, however, ruled that the language is so vague that it invites arbitrary and discriminatory enforcement, meaning that Dimaya and others like him, would not be subject to mandatory deportation moving forward.
Another anticipated case is one surrounding the third iteration of the Trump administration’s “travel ban” executive order. The Supreme Court heard oral arguments this past week and examined whether or not the executive order is discriminatory against Muslim individuals, which would violate the First Amendment protection on freedom from religious discrimination. One unusual consideration in the arguments was whether to separate, “the president” from “this president.” President Trump has continued to tweet and retweet anti-Muslim rhetoric which has contributed to a growing debate as to whether his comments should be considered in tandem with the executive order. Solicitor General Noel Francisco urged that the Court not get distracted by the President’s social media outbursts, supporting an argument that the President’s personal intent should not be considered when examining implications of the written proclamation. While a ruling has not yet been issued, sources suggest the Supreme Court may end up ruling in favor for the administration.
Exacting punishment on jurisdictions with sanctuary policies that explicitly affirm state’s rights with respect to the detention of immigrants without cause has been a part of the Trump administration’s immigration platform from the start. Further, since the start of the year, the Department of Justice (DOJ) increased its scrutiny and threatened to pull federal dollars from 23 states and localities as stated in letters sent asking them to prove compliance with federal law. However, in April 2018, U.S. District Judge Manuel Real found that the DOJ is no longer allowed to favor police departments which cooperate with Immigration and Customs Enforcement (ICE) through federal funding. The ruling took place in response to Attorney General Jeff Sessions having changed how DOJ judged applications from local police agencies for the Community Oriented Policing Services (COPS) program. After the change in eligibility, which required local police to cooperate with ICE, the Los Angeles Police Department no longer qualified for the program, which has been correlated with a significant drop in crime rates. The ruling found that the DOJ could not coerce local jurisdictions to enforce federal immigration laws as this responsibility lies in the hands of the federal government. Last week, the 7th U.S. Circuit Court of Appeals in Chicago, upheld the nationwide injunction.
State and federal judicial developments continue to set a precedent for future lawmaking in issue areas impacting higher education. These cases illuminate the ever-evolving nature of our representative democracy. If you liked this post or have been following a case we didn’t cover here look for future judicial proceeding posts, and feel free to send us an update on the cases you’ve been tracking!