This essay proposes a methodology for interpreting the Supreme Court’s long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty, after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful methodology, because sometimes justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be discerned, and where these patterns can be explained by a coherent doctrinal theory, there is good reason to use them as a foundation for refining the Chevron doctrine.
Today, coinciding with National Hispanic Heritage Month, in partnership with The University of Texas at El Paso (UTEP), the National Trust for Historic Preservation kicked off the 2017 Bracero History Summit—the first ever gathering of leading scholars, curators, students, activists and community members to explore the enduring impact of the Mexican Farm Labor Agreement, better known as the Bracero Program. The two-day event, which marks the 75th anniversary of the first braceros admitted into the U.S., has brought more than two hundred attendees to El Paso to unearth the challenging and unheard stories of the immigrant experience that now serves as the founding link for modern Mexican-American communities.
“We’re excited to have brought together a group of groundbreaking researchers and thinkers with such a diverse and curious audience,” said Sehila Mota Casper, field officer for the National Trust for Historic Preservation. “We think our attendees, especially those who trace their roots to their fathers' or grandfathers' entry into the U.S. as braceros, will find the summit to be a rewarding opportunity to share this emerging history. This exchange is crucial for the development of Bracero history, as well as the protection and stewardship of deeply significant Latino historical sites.”
In recent years, a resurgence of interest in the U.S. government’s Bracero Program, in effect from 1942–1964, has resulted in new analysis, discourse, cultural practice, and heritage work surrounding the program. Through a series of panel and roundtable discussions, study findings, museum exhibitions, and multi-media presentations, Bracero History Summit attendees are examining the roots and influence of the Bracero Program and considering a wide range of topics, including personal accounts from braceros and contemporary migrant farmworker narratives.
“The long-lasting influence of the Bracero Program on the patterns of migration, settlement and agricultural economy in the U.S. remains relatively unknown to most Americans,” said Dr. Yolanda Chávez Leyva, director of the Institute of Oral History and the Borderlands Public History Lab at UTEP. “The Bracero History Summit presents an opportunity to identify new research needs, make amends and bring to light the stories of the skilled Mexican guest-workers that helped shape America in the decades following World War II.”
The summit is part of the National Trust’s broader campaign to work with local partners to save and raise awareness of Rio Vista Farm—the last known standing bracero processing site. Located in Socorro, Texas, and named a National Treasure by the National Trust in 2016, Rio Vista Farm played an important role during the Bracero Program. From 1951 to 1964, the site was one of five reception centers along the U.S.-Mexico border, processing more than 80,000 braceros annually. Incoming guest-workers were met with medical and psychological examinations, stripped of their clothing, and fumigated with DDT before they could be evaluated by contractors and bused across the U.S. to be hired as farmworkers in any one of the dozens of participating states. In all, some 4.6 million border crossings were sponsored during the Bracero Program’s 22-year lifespan.
“Despite being the nation's largest experiment with guest workers, much has yet to be adequately documented and studied about the often-heartbreaking bracero story,” said Francisco Uviña, Interim Director of the Historic Preservation and Regionalism Graduate Program at the University of New Mexico and son of a surviving bracero processed at Rio Vista Farm. “We must tell the whole story of how our country traversed difficult moments, including historical narratives that challenge long-standing assumptions about our past. The stories of the Bracero Program, just like the stories of Japanese American internment camps, need to continue to come out of the shadows.”
The Bracero History Summit is hosted across The University of Texas at El Paso campus and concludes with an up-close tour at nearby Rio Vista Farm, which will bring attendees face-to-face with living braceros, as well as ongoing preservation efforts at the site.
Among the featured speakers are: Barbara Pahl, senior vice president of field services for the National Trust; Dr. Diana Natalicio, president of UTEP; Dr. Deborah Cohen, director of Latina/Latino Studies at the University of Missouri–St. Louis, author of Braceros: Migrant Citizens and Transnational Subjects in the Postwar United States and Mexico; Dr. Sarah Z. Gould, Latinos in Heritage Conservation; Stephen Velasquez, Smithsonian National Museum of American History, curator of the bilingual exhibition Bittersweet Harvest: The Bracero Program 1942-1964; and Dr. Mireya Loza, Smithsonian National Museum of American History, author of the award-winning Defiant Braceros: How Migrant Workers Fought for Racial, Sexual, and Political Freedom.
Financial support for the 2017 Bracero History Summit was provided by the National Trust for Historic Preservation’s Fondren Fund for Texas, UTEP’s History Department, Museo Urbano, and Union Pacific Railroad. Additional support provided by the City of Socorro, Latinos in Heritage Conservation and the Smithsonian Institution.
The new restrictions will vary by country. They could include a ban on travel to the United States, or new restrictions on obtaining a visa for citizens of particular countries.
They would replace the ban on entry by citizens of six Muslim-majority nations, which Trump announced early in his term and later modified. The policy was under a 90-day review, which expires Sunday. The new measures are expected to take effect by then.
Federal and state policies that make immigrant work putatively illegal are in tension with a constitutional right to work that is deeply rooted in United States history and jurisprudence. The Department of Homeland Security ("DHS") regulates immigrant work through a system of employment authorization and sanctions on employers who hire unauthorized immigrant workers. This system has become such a central feature of immigration law that few recognize it is a relatively recent innovation. While the United States has always regulated its domestic labor market by modulating immigration, regulation of work as a mechanism of immigration enforcement has only existed since the 1980s. In order for that system to come into being, a radical shift needed to occur: immigrants' right to work had to be forgotten.
From the late nineteenth through the early twentieth centuries, courts accepted that immigrants had a right to work based on substantive due process and natural law. This article contends that there are strong constitutional reasons to return to that principle, which has lapsed but has never been overruled. The right of immigrants to work is "objectively, deeply rooted this Nation's history and tradition," which is sufficient to trigger a rigorous form of substantive due process review. No statute has ever been passed that revokes immigrants' right to work; the laws that exist today do not ban unauthorized immigrants from working but instead utilize employer sanctions to relegate them to various forms of contingent work. In these positions, immigrant workers are denied the bundle of rights and protections that go along with the traditional employment relationship. They face exploitation, lower wages, unsafe conditions, and retaliatory discharge or reporting to DHS.
This system of subordination arose during the late 1970s after a dramatic curtailment in legal Western Hemisphere immigration virtually assured a constant campaign of deportation against millions of predominately Latin American unauthorized immigrants. Policymakers discouraged unauthorized immigrant employment as a strategy to reduce the wave of illegal immigration they had created—a goal that has so far not been met. This history shows that the ineffective policies of the present day raise significant constitutional concerns, and it is time to reconsider them. One way to do so is by taking a second look at the right to work that was well established during an earlier era of United States history.
Ok, it's not a bar. They meet on a bench in a park to talk not about immigration but about hate speech. In October, Germany will start requiring social media networks (Facebook, Twitter) to delete hate speech and fake news. Is this a good idea? Or an assault on free speech?
What's impossibly wonderful about this short film (under 5 mins) is the level of civility and grace the two men exhibit during their discussion. It gives me hope for the future of political discourse. Especially when it's conducted face-fo-face and not across the rancorous interwebs.
"I urge tolerance toward your fellow students, faculty and staff members at this time. Opinions about the U.S. President’s policies will no doubt be mixed, but let’s respect each other and engage in meaningful discourse. We will not tolerate harassment or hateful dialogue at our institutions. Let us step back from events, to inform ourselves of the issues, and to act charitably to all who are our neighbors and community members. Everyone who is admitted into our college communities belongs there, and we must respond accordingly. We have many such resources, and dedicated people who are scrambling to assist. Coming full circle, I worked with a different group of law professors recently to suggest to the Trump Administration that DACA was lawful and proper, and urged them not to end it. Our advice was not heeded, but our advocacy will be successful, because as acccommodationists, not restrictionists, we are on the right side of this issue and its history."
Beth Caldwellon The Hilllooks at the possibility that, with the dismantling of DACA, its recipients may ultimately be deported. Having done research for seven years on deportees to Mexico, Caldwell concludes
"Deportation almost always creates hardships in people’s lives, but it is exponentially worse for people who grew up as Americans. The United States should recognize the unique status of young people who have grown up as Americans. Deporting them runs counter to our country’s values."
The deeply reported story of identical twin brothers who escape El Salvador's violence to build new lives in California—fighting to survive, to stay, and to belong.
Growing up in rural El Salvador in the wake of the civil war, Ernesto Flores had always had a fascination with the United States, the distant land of skyscrapers and Nikes, while his identical twin, Raul, never felt that northbound tug. But when Ernesto ends up on the wrong side of the region's brutal gangs he is forced to flee the country, and Raul, because he looks just like his brother, follows close behind—away from one danger and toward the great American unknown.
In this urgent chronicle of contemporary immigration, journalist Lauren Markham follows the seventeen-year-old Flores twins as they make their harrowing journey across the Rio Grande and the Texas desert, into the hands of immigration authorities, and from there to their estranged older brother's custody in Oakland, CA. Soon these unaccompanied minors are navigating a new school in a new language, working to pay down their mounting coyote debt, and facing their day in immigration court, while also encountering the triumphs and pitfalls of life as American teenagers—girls, grades, Facebook—with only each other for support. With intimate access and breathtaking range, Markham offers a coming of age tale that is also a nuanced portrait of Central America's child exodus, an investigation of U.S. immigration policy, and an unforgettable testament to the migrant experience.
This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any administration, even one that seeks to drastically increase deportations. The federal government has always balanced immigration enforcement against other goals and values, such as deterring crime, protecting wages and working conditions, collecting taxes, and preventing U.S. citizen children from being separated from their parents. Deporting immigrants based on information provided in the service of these greater goals would elevate immigration enforcement over all other federal policies. Furthermore, doing so would almost immediately render these laws a dead letter, since no rational unauthorized immigrant would apply for visas or pay taxes if doing so were tantamount to self-deportation. Accordingly, any increase in removals from the use of such data is sure to be fleeting, while the damage done to immigrants’—and perhaps all citizens’—trust in the government will be permanent.
California Attorney General Xavier Becerra today challengedthe Trump Administration over its plan to begin construction of border wall projects in San Diego and Imperial Counties. In a lawsuit filed in the U.S. District Court for the Southern District of California, on behalf of the people of the State of California and the California Coastal Commission, Attorney General Becerra charges that the Trump Administration violated the U.S. Constitution, failed to comply with federal and state environmental laws, and relied on a federal statute that does not authorize the proposed projects.
“The Trump Administration has once again ignored laws it doesn’t like in order to resuscitate a campaign talking point to build a wall on our southern border,” said Attorney General Becerra. “President Trump has yet to pivot from candidate Trump to leader of a nation built on the rule of law. That's dangerous. When you respect the law, you instill confidence and certainty in your people, so critical for success. That's why California, while only one of 50 states, has become the sixth-largest economy in the world. And that's why, if you plan to do business in California, and that includes the President, then be prepared to follow the law.”
“The California Coastal Commission is charged with upholding one of the strongest environmental laws in the country: the California Coastal Act,” said Coastal Commission Chair Dayna Bochco. "We must be allowed to do our job, which is to make sure this wall and its construction impacts don’t destroy this environmentally rich area.”
On January 25, President Trump issued an Executive Order that directed the Secretary of the United States Department of Homeland Security (DHS) to identify and “allocate all sources of Federal funds for the planning, designing and construction of a physical wall along the southern border.” Pursuant to the Executive Order, DHS announced on August 2 that it intended to carry out various border wall projects in San Diego County, including the construction of prototype walls and fences and the replacement of 14 miles of existing primary fencing with new fencing. DHS also has announced that it intends to replace 14 miles of existing secondary fencing, in this same area, with a solid wall or other barrier.
Former DHS Secretary (now White House Chief of Staff) John Kelly moved to expedite these construction projects using a federal statute that pertained to border projects proposed and constructed before 2009. And just last week, DHS announced it also intended to carry out a border wall project in Imperial County. Like former Secretary Kelly, Acting Secretary Elaine Duke proposed unlawfully expediting the construction of this project.
In the complaint filed today, Attorney General Becerra describes the ways in which the border wall projects are unlawful:
DHS failed to prepare an environmental impact statement with respect to the border wall projects in San Diego and Imperial Counties in violation of the National Environmental Policy Act and the Administrative Procedure Act. DHS also failed to comply with the Coastal Zone Management Act with respect to wall construction in San Diego County.
To expedite construction of the border wall projects in San Diego and Imperial Counties, DHS relied on Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Section 102 allows the DHS Secretary to waive any law he or she deems necessary to “install additional physical barriers and roads...in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Congress required DHS to identify “priority areas” for construction and to complete that construction on an expedited basis by no later than December 31, 2008 – almost ten years ago. The Secretary’s authority to waive laws under Section 102 expired in 2008, and DHS did not identify the San Diego or Imperial project areas as “priority areas” before this deadline.
DHS’ improper application of the waiver provision under Section 102 violates several provisions of the U.S. Constitution, including the Separation of Powers doctrine and the 10th Amendment. The Constitution does not permit government officials to unilaterally and arbitrarily waive any law of their choosing, including criminal laws and laws enacted by the States.
U.S. immigration officials have a long and checkered history of mistreating migrants at the Southern border. Allegations of abuse throughout the apprehension, detention, and deportation process are not new; migrants have voiced complaints for years, with litigation dating back several decades.
A more dismal future for migrants looms today, as the U.S. government promises to institute a new level of immigration enforcement. Within its first year, the Trump administration issued directives to intensify and scale up border enforcement, detention, and deportations, as well as expand expedited deportation procedures to unprecedented levels. Moreover, the administration’s tacit—if not explicit—approval of harsh treatment toward migrants also risks emboldening immigration agents to act improperly. Indeed, evidence of mistreatment and abuse has already surfaced.
This report explains the stark findings of an empirical investigation into the behavioral patterns of U.S. immigration authorities during the apprehension, custody, and removal of Mexican migrants from the United States. The analysis is based on new survey data and testimonies collected by the Binational Defense and Advocacy Program (in Spanish, Programa de Defensa e Incidencia Binacional, or PDIB). Between August 2016 and April 2017, PDIB interviewed 600 migrants who were deported from the United States to Mexico at one of the following repatriation points: Nogales, Sonora; Nuevo Laredo, Tamaulipas; Ciudad Juárez, Chihuahua; and Reynosa, Tamaulipas. (See Appendix I for survey methodology).
Among other issues, the survey sought to examine whether U.S. immigration agents properly informed migrants of their rights, actively interfered with migrants’ rights, coerced or intimidated migrants in their custody, or failed to provide removal documents to migrants at the time of repatriation. The results are unnerving. In each of the areas examined, U.S. officials failed to deliver basic rights under U.S. laws and policies:
43.5 percent of the respondents surveyed were not advised of their right to contact their consulate;
More than half of the respondents surveyed (55.7 percent) were not asked if they feared returning home;
Almost a quarter of the respondents (23.5 percent) reported being victims of some type of abuse or aggression by immigration authorities during their apprehension;
Half of the respondents (50.7 percent) who signed repatriation documents reported that they were not allowed to read the documents before they signed them;
57.6 percent of the respondents did not receive their repatriation documents.
What emerges from the survey data and testimonies is an alarming portrait of the way Mexican migrants are treated while in U.S. custody and through the deportation process. Often, migrants do not receive copies of deportation documents and have little understanding of the processes they have undergone and the related legal ramifications. When U.S. officials prevent migrants from accessing critical information and processes, they further deprive individuals of their possible legal opportunities to present immigration claims.
While in U.S. custody and control, many migrants are deprived of legally required information, thwarted from contacting their consulates, compelled to sign documents they cannot read or understand, threatened with protracted detention, and blocked from applying for asylum and other legal claims—even in the face of serious danger. In short, these migrants are left in the dark during their deportations.
Given the escalation of immigration enforcement, the problems identified in this report are only likely to multiply. If not addressed, the behavioral patterns leading to abuses could spawn mass constitutional rights violations.
For the past four years, Laura has served low-wage immigrant communities while learning from the immigration advocates at California Rural Legal Assistance Foundation. As she writes, her experiences as an AmeriCorps member in rural Texas, a volunteer law student, an Equal Justice WorksFellow, and now an Immigration Staff Attorney in rural California, have all reaffirmed her commitment to serving immigrants in geographically isolated communities. In light of recent announcements about the future of Deferred Action for Childhood Arrivals (DACA), she compiled an overview of the program.
The Austin Statesmanreports on the death in Mexico of a recently deported immigrant.
Juan Coronilla-Guerrero’s wife warned a federal judge this spring that her husband would be killed if the U.S. government followed through with his deportation.
Her prediction came true last week. Three months after the former Austin resident was taken back to Central Mexico by federal authorities, his body was found on the side of a road in San Luis de la Paz, Guanajuato, near where he had been living with his wife’s family.
Coronilla-Guerrero’s death comes six months after federal immigration agents took the rare step of entering the Travis County criminal courthouse to detain him on charges of illegal reentry — a move that escalated fears about ICE’s crackdown on unauthorized immigrants.
During the early stages of the Trump ICE age, we seem to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Didn’t we label Barack Obama the “Deporter-in-Chief?” Wasn’t it George Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries and didn’t his ICE commonly engage in armed raids a factories and other worksites? Aren’t there strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras?
What about the fear and hysteria that seems to really be happening in immigrant communities? Is the fear unparalleled? Why is there so much fear? Is the fear justified? Why do things seem different, in spite of rigorous immigration enforcement that has occurred even in recent years?
This article begins with a comparison of what the Trump administration has done in terms of immigration enforcement with the enforcement efforts of other administrations. For example, I compare (1) the attempted Muslim travel bans with post-9/11 efforts by George W. Bush and Iranian student roundups by Jimmy Carter, (2) the Border Wall proposal with the Fence Act of 2006 and Operation Gatekeeper in 1994, (3) restarting Secure Communities (fingerprint sharing program) with Obama’s enforcement program of the same name, (4) expanding INA § 287(g) agreements with Bush efforts under the same statute, (5) the threat of raids by an ICE deportation army with Bush gun-toting raids, (6) extreme vetting of immigrants and refugees with what already existed under Bush and Obama, (7) threatening to cut off federal funds to sanctuary cities with the prosecution of sanctuary workers in the 1980s, (8) prioritizing “criminal” immigrants with Obama’s similar prioritization, and (9) expedited removal in the interior with Bush and Obama expedited removals along the border. Then I turn to the fear and hysteria in immigrant communities that has spread throughout the country. I ask why that fear has occurred and whether the fear has a reasonable basis. I close with a personal reflection on the parallels I have seen and experienced since I began practicing immigration law as a legal services attorney in 1975 and contemplate why enforcement and the resulting fear are different today.
The children of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu today filed an amicus brief in the U.S. Supreme Court opposing Executive Order No. 13780, the Trump administration’s travel ban on nationals from six Muslim-majority nations, pointing to the unjust incarceration of Japanese Americans during WWII as an urgent warning against presidential powers run amok.
“Rather than repeat the injustices of the past,” states the brief, the Court “should heed the lessons of Korematsu, Hirabayashi, and Yasui: Blind deference to the Executive Branch … is incompatible with the protection of fundamental freedoms.”
The brief was filed on behalf of Jay Hirabayashi, Holly Yasui, and Karen Korematsu by the Fred. T. Korematsu Center for Law and Equality at Seattle University School of Law in partnership with the legal teams that gained exoneration of the three men in historic coram nobis petitions in the 1980s. Attorneys from Akin Gump Strauss Hauer & Feld LLP provided pro bono counsel.
Numerous prominent civil rights organizations stand with Hirabayashi, Yasui, and Korematsu on the brief, including Asian Americans Advancing Justice, Asian American Legal Defense and Education Fund, Hispanic National Bar Association, Japanese American Citizens League-Honolulu Chapter, LatinoJustice PRLDEF, National Bar Association, and South Asian Bar Association of North America.
In defending the travel ban, the government asserts that “federal courts may not second-guess the political branches’ decisions.” Invoking national security, the government seeks near complete deference to the President’s decision to deny visas and suspend the entry of refugees from six Muslim-majority nations.
Today, the children of these iconic Supreme Court litigants remind the Supreme Court that during World War II, its near complete deference to the executive branch and corresponding failure to scrutinize another Executive Order – Presidential Executive Order 9066 – resulted in upholding the constitutionality of 120,000 Americans being forcibly incarcerated because of their racial ancestry, a decision now universally condemned as a civil liberties disaster.
By choosing not to question the executive branch, the Court essentially “rubber-stamped” the government’s bald assertion that the mass-round up was reasonable and necessary, and in doing so, abdicated its critical role in safeguarding fundamental freedoms.
In contrast, both the 9th Circuit and 4th Circuit Courts of Appeals this year ruled that it is the duty of the judiciary to hold the President accountable to the requirements of the law and the Constitution—and that unfounded claims about threats to national security cannot justify the wholesale infringement of civil liberties.
Moreover, the Hirabayashi, Yasui and Korematsu brief argues that the government’s present position that the courts should give the executive branch extreme deference is not rooted in sound constitutional tradition, but relies on previous court decisions based on racism and xenophobia.
It bears remembering that three Justices wrote scathing dissents in Korematsu v. United States, questioning the government’s claims that the mass deprivation of civil liberties was justified by military necessity, including Justice Robert H. Jackson who referred to the majority’s decision as “a loaded weapon ready for the hand of any authority who could put forth a plausible claim of an urgent need.”
Justice Jackson meant that with little more than an assertion by the government that national security demands it, an entire group could be denied their fundamental freedoms.
If the Supreme Court accepts the government’s view that the courts should abdicate their constitutional role of ensuring that the President’s actions adhere to the Constitution and the law, the Court risks repeating the injustices stemming from Hirabayashi, Yasui, and Korematsu.
Without any meaningful review by the courts of government actions, it invites overreach and the potential for abuse. In this regard, the children of Hirabayashi, Yasui and Korematsu point to the misconduct that occurred in their fathers’ challenges.
Four decades after the Supreme Court ruled against these litigants, their cases were successfully reopened on the grounds that the government deceived the Court by withholding evidence that would have exonerated not only the three men, but all the Americans who were imprisoned behind barbed wire.
The evidence included intelligence reports from the Navy, FBI, and the FCC, which categorically denied that Japanese Americans had committed any wrong or posed any threat. Other Justice Department memoranda characterized the Army’s claims that Japanese Americans were spying as “intentional falsehoods.” These official reports were never presented to the Court, having been intentionally suppressed and, in one case, destroyed by burning it.
If the Court abdicates its constitutional role of asking probing questions to determine whether there is a reasonable factual basis for the Executive Order, the executive branch could use this strategy again to achieve an equally unjust outcome.
Today, President Trump argues in court and in the news media that his Executive Order is not reviewable by any court. The Trump Administration is asking the judiciary to make the same mistake it made in the 1940s, and the Appeals Courts have wisely declined.
The University of California is sponsoring the first combined conference of UC’s four law schools focused on public interest. The conference, developed in partnership with Continuing Education of the Bar (CEB), California's premier legal resource provider, will bring together over 500 diverse UC law students and young professionals and is designed to expose them to the wide array of issues around the inaugural theme: Civil Rights in the 21st Century.
Stemming from the University of California's Public Service Fellowship, which provides over $4.5 million annually to students interested in public interest law at four co-hosting schools (UCI Law, UCLA Law, UC Davis School of Law, and Berkeley Law) the conference will be a capstone experience for the first group of summer and post-grad UC Presidential Fellows.
Eighteen breakout sessions will address vital issues like immigration, criminal justice reform, homelessness, and water rights. Multiple sessions will be offered for CLE credit. Registration, schedule, speakers list and more details here >