National Security, Immigration and the Muslim Bans01 Jan 2018
National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim bans, nor does it analyze the literature about the future of plenary power. There is a large body of scholarship and a treasure trove of litigation to address both questions.
Part II of this Article describes the first three Muslim bans the Executive Branch issued starting in January 2017. Part III explains the legal challenges to those bans brought in federal district and appellate courts around the country, and the government's reliance on national security language to justify the bans. Part IV describes the human impact of the Muslim bans and some responses outside of the courtroom by organizations who represented the community and by the Penn State Law Center for Immigrants' Rights Clinic (CIRC). I launched the CIRC in 2008 which over the last decade has been engaged in providing legal support in individual immigration cases, community outreach and education and policy products for organizational clients.
For more than two centuries, national security has been used to justify immigration laws that exclude people based on race and related factors. Even in cases where the courts or a future administration have struck down these laws or found no connection between matters of national security and the basis for exclusion, there has been little to no government accountability. As I reflect on the profound human impact, prolonged courtroom sessions and resistance to the Muslim bans, my hope is that the government is held accountable with restitution to those impacted and a stronger country.