Immigration law and authority is at the heart of foreign affairs, national security and family stability.
This week the 9th U.S. Circuit Court of Appeals declined to reinstate President Donald Trump’s executive order limiting travelers from seven countries previously determined by former President Barak Obama to be terrorist source nations. Read what the ABA Journal published here. Bloomberg BNA reported the events for US Law Week here.
The decision (PDF) discussed that the “hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.” The President of the United States generally has sweeping authority on matters of immigration, as federal law allows the president to suspend people or classes of people if he determines their entry is "detrimental" to the nation, as Obama did previously and Trump did last week. While a 1965 update to the Immigration and Naturalization Act clarifies that those wishing to immigrate should not experience preferences or discrimination on account of their "race, sex, nationality, place of birth or place of residence," that standard of review generally requires that an objecting petitioner (here the State of Washington) must show that the order imposes “irreparable harm” upon the petitioner. The decision by the 9th Circuit panel, however, seems to differently apply that standard, concluding that the federal government had not demonstrated its likelihood of success on the merits, rather than requiring the State of Washington to show irreparable harm. What was shown by the state was that foreign students and executives would be hindered and inconvenienced in travel to and from the state under the order, and additional court papers indicated that Facebook Inc., Google Inc. and Microsoft Corp., would be hindered in their global businesses by the order. No one asserted or proved the necessary standard of irreparable harm.
Families, individuals and states need all branches of government - executive, judicial and legislative - to use the rule of law in decision making. Personal and national security depends upon it, and is important to all families.
There are myriad Challenges of Family Law and Policy in Immigration Regulation, and the US definitely needs Immigration Reform for the Best Interests of Children, but families need Human Rights Protections in a Post 9/11 World for personal security in the United States. Families deserve that protection.
Federal executive orders to foster that security should only be overcome by a clear showing of irreparable harm, rather than inconvenience.