Trump’s Immigration Executive Orders: The Breakdown
Trump’s executive orders on immigration: what they are and what they mean to you
There have been many items in the news lately, regarding Trump’s executive orders on immigration. Before one can fully understand what is being put into place it is crucial to clarify what an executive order or action is and what is its purpose and reach.
According to the 1975 case, Independent Meat Packers Association v. Butz:
“An executive order is a rule or an order issued by the President to an executive branch to take a specific action or to change a specific practice. Executive orders do not require Congressional approval to take effect but they may have the same legal weight as laws passed by Congress if issued pursuant to a statutory mandate or delegation of authority from Congress.”
What this says is that an executive order can be put into place only if it is consistent with current law. It also means that the president, despite what many say, cannot make his own laws, but can merely prioritize their enforcement and specify how it will be done. For example, an executive order cannot make abortion illegal, as only Congress can make new law or change an existing law. But an executive order can make an existing law a priority for enforcement, such as when President John F. Kennedy forced schools practicing segregation to receive students of color and made it a priority in his administration.
So what are the two executive orders that have made such big headlines?
Executive Order #1
Enhancing public safety in the interior of the United States: This order takes away federal funds from cities or states that will not enforce federal immigration laws, arguing that it will enhance the public safety in the interior of the U.S. The reason so many cities and states have rejected Trump’s “order” to enforce federal immigration laws is that it can contradict their own laws and regulations on the same issue. However, the federal government can withhold funds, because federal law trumps state law. This executive order also instructs the Department of Homeland Security to issue fines against aliens unlawfully present in the U.S.
In addition to all of this, the order invalidates President Obama’s earlier order that focused the funds and manpower of Homeland Security on the detention and removal of especially dangerous criminals and aliens posing security risks. Trump’s order removes this focus and directs immigration officials to detain and remove virtually every alien who is unlawfully in the country, whether or not they have violated criminal laws, even if they do not pose a security risk or are otherwise law abiding people. The expected result is that it will have a seriously negative effect on communities with many immigrants throughout the country, as families may be separated and serious criminals will not be apprehended due to the lack of focus on them. In addition to that, there will be a huge budget increase for Homeland Security in order to fulfill the manpower requirements which will take resources away from important government projects.
The Supreme Judicial Court of Massachusetts is reviewing a case to determine if “Immigration Detainers”—written requests for police and local jails to hold a person in custody—are “legal”, to decide if it should allow the state government to hold immigrants in custody since these detainers are not “criminal” warrants issued by a court.
Executive Order #2
Protecting the nation from foreign terrorist entry into the United States: this order suspends the admission of Syrian refugees to the U.S. for 120 days and bars the entrance to the U.S. for 60 days to all persons from 7 Muslim-majority countries; Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia.
Are These Orders Legal?
Many have been asking if the executive orders signed by Trump are legal, and if they are, then how is it possible that federal judges were able to prevent them from being carried out?
This is where the lawsuits come into play. In court, it is being challenged whether or not these orders are legal or even constitutional. The Constitution of the United States established the procedure for which laws are to be passed. A President cannot create laws. Instead, a president’s role is to enforce laws made by Congress and laws shall not violate the rights protected by the Constitution. These orders are thought to violate the Constitution and provisions of the Immigration and Naturalization Act of 1965 that put a ban on discrimination toward immigrants because of country of origin.
What Will Happen Then?
Is it possible that Trump can revoke the visa status of someone? Actually, he cannot. There are provisions noted in these laws that control visas and immigrant statuses. They can be revoked, but there are clear procedures that have to be followed to do so.
Deferred Action for Childhood Arrivals: DACA
What will happen to young immigrants currently protected by the DACA program? We do not know if the President´s administration will end the DACA program. As for now applications are still being accepted and approved.
However, the President may terminate the period of a DACA recipient’s “deferred action”. But the chance is slim because the law does not allow the government to charge a fee without providing a benefit. If the benefits issued to DACA recipients were removed, or if pending applications were rejected, the individuals would no longer be receiving the benefit that they paid for and this would be against the law.
To read “The Scope of Trump’s Executive Orders and DACA,” visit the following newsletter from FitzGerald & Company.
About Desmond P. FitzGerald:
Attorney Desmond P. FitzGerald is the Principal and Managing Director of FitzGerald Law Company in Boston, MA. He is a criminal and immigration litigator and has successfully litigated hundreds of immigration cases in Federal Court. He has more than 20 decisions published and many of them have created precedent. Attorney FitzGerald is admitted by the Bar to practice law in Massachusetts, New Hampshire, Florida, and Washington D.C. and he is an active member of the American Immigration Lawyers Association (AILA) and the National Association of Criminal Defense Lawyers (NACDL). For more information visit: https://www.fitzgeraldlawcompany.com.