Yale law prof sees constitutional issues in Trump immigration orders; reform advocate lauds enforcement

Jan. 30--NEW HAVEN -- Michael Wishnie has been down this road before.

The Yale Law School professor for years has been among litigators who have challenged previous administrations on the constitutionality of their immigration policies, and won.

He hopes the Trump administration has a shorter learning curve and leaves policies in place that temper constitutionally defined removal polices rather than repealing them, only to reinstate them years later.

Some previous administrations have allowed the use of prosecutorial discretion, avoided conducting deportation raids in vulnerable places such as schools, churches and rallies and protected crime victims in the enforcement of immigration laws, he said.

Those provisions are technically still in force, but Wishnie said they are vulnerable to repeal.

Wishnie, who heads the Jerome N. Frank Legal Services Organization at the law school, was reacting generally to an executive order issued by President Donald Trump that greatly expands the number of undocumented residents the federal government will prioritize for removal.

While Trump also signed an order temporarily banning refugee entry, a federal judge issued an emergency order Saturday night temporarily barring the U.S. from deporting people from nations subject to the travel ban, the Associated Press reported. The order barred U.S. border agents from removing anyone who arrived in the U.S. with a valid visa from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen. It also covered anyone with an approved refugee application, AP reported.

Wishnie led a group of Yale Law School students over the weekend, in the fast-changing story, who filed briefs that helped keep two Iraqi refugees from being sent back to Iraq. They are also working on the broader issue challenging the constitutionality of Trump's actions.

But the president's orders could specifically hurt Connecticut as they also target so-called "sanctuary" cities and states with a loss of funding if they violate federal laws on immigration issues.

There is no legal definition of sanctuary city, but it has been understood to apply to those communities that refuse to allow their police to help enforce federal immigration laws.

"Over the years both Republican and Democratic presidents at different times have decided to look tough on immigration and tried to engage in harsh enforcement of immigration laws ... and each time that president and his staff have learned that there are good reasons of policy, of economics and human morals not to pursue that kind of severe enforcement," Wishnie said.

The problem, Wishnie said in an interview in his office, is that between now and the time they could be reversed, "a lot of people are going to suffer real harm -- families, children, parents. And even if they are not personally affected, already the stress in these households (is) horrible."

Deporting the 11 million immigrants who do not have legal status in the U.S., and building a wall on the Mexican border, were two of Trump's consistent campaign promises. On several occasions, he said he has plans to deport criminal undocumented immigrants, which he said numbered between 2 million and 3 million.

The Migration Policy Institute , a nonpartisan think tank, however, said the number is closer to 820,000.

Trump, in a speech in August 2016, said 300,000 "criminal aliens" had been released back into communities, but according to ICE figures, the number is 82,288, with 56 percent released based on prosecutorial discretion, according to a Washington Post fact-checking story.

Mark Krikorian, the executive director of the conservative Center for Immigration Studies, agrees with Trump's decision on ICE and deportation.

He is hopeful that the policy changes will increase the removal of more undocumented individuals from the country.

Still, the fact that 2.5 million immigrants were deported during Obama's years in office, earned him the title of deporter-in-chief from activists.

The CIS disagrees across the board with Wishnie's interpretation and in a policy paper advocated for most of the provisions included in the executive order with Trump's calculations mirroring those of CIS.

It said demanding a judicial warrant from ICE before honoring a detainer request is a false argument since such warrants are not available to them. Krikorian said administrative warrants should suffice, as they have in Suffolk County on Long Island.

Krikorian said if Trump shrinks the undocumented population in his first term, he could be in a position after that "to make a case for amnesty."

But right now, he said, that is not advisable.

"You don't mop the floor until you shut off the facet," Krikorian said.

But Wishnie, the ACLU of Connecticut and others, argued that neither New Haven's nor the state of Connecticut's policies are in violation of federal law.

Trump's executive order directs the attorney general to take action against any jurisdiction "which has in effect a statute, policy or practice that prevents or hinders the enforcement of federal law."

New Haven since 2006 has had a general order that states that officers should not inquire about the legal status of residents who approach them seeking help, or as witnesses or victims of a crime.

This doesn't apply if they are investigating criminal activity and police cooperate with federal agents looking into an undocumented resident suspected of such activity.

City police, however, will not detain someone solely based on a belief they are undocumented or enforce administrative warrants issued by ICE.

In the police order, immigration status, with some exceptions, is considered part of a long list of items deemed confidential information, which the U.S. 2nd Circuit Court of Appeals said is the right of a locality under the 10th Amendment, Wishnie said.

The state Department of Correction, under the 2013 Connecticut Trust Act, won't honor most detainer requests from U.S. Immigration, Customs and Enforcement to hold, for 48 hours, a prisoner being released from its custody, unless there is documented probable cause.

The state, however, does notify ICE when it won't honor a detainer and therefore shares such information with agents as required by federal law, Wishnie said.

Police departments have found if they act as ICE agents, they lose cooperation of their immigrant communities in working to keep their cities safe.

Wishnie said Trump's executive order does not specifically tell states to enforce detainers, but rather says it will keep track of these individuals and publicize the list.

Wishnie said every federal court that looked at the detainer issue found they are not grounds to hold someone. He said state and local police are also liable for damages for false arrest under a detainer.

New Haven Assistant Chief Luis Casanova told a rally in support of immigrants last week that a five-year drop in serious crime in New Haven is at least partly attributed to the general order and feeling of trust that has evolved between police and residents.

More than 360 governmental jurisdictions, according to the Migration Policy Institute, limit or bar use of their police departments in enforcing immigration policy. The MPI estimated these areas are home to more than half the undocumented population in the U.S.

"State and local governments are under no obligation to assist the national government" in enforcing laws under federal jurisdiction, said Dan Barrett, legal director at the ACLU-Ct.

As for loss of federal funds, Barrett said if there isn't a federal violation, funds can't be threatened. In addition, he said there are constitutional and statutory reasons why he and others believe the president can't withhold the money.

New Haven said it has received $13.5 million of $43 million in approved federal grants, but this doesn't include $20 million promised for the Downtown Crossing infrastructure project.

Wishnie said federal funds are awarded based on statutes approved by Congress, which usually list specific criteria for which the money can be used.

"If Congress says HUD can give money for a program based on three criteria, the president may not, by executive order, add a fourth criteria," Wishnie said.

"We don't have kings in America and if he (the president) wants to amend the statutes that govern federal spending, he can go to Congress and ask them to do it," Wishnie said.

The two constitutional issues are the 10th amendment protection of state rights and interpretations of the spending clause, which gives the power of the purse to Congress.

The 10th amendment "protects a core of traditional state lawmaking, most classically in the case of police and welfare policies. ... That's what the cities and the states historically did. Those were local government issues and the 10th amendment most powerfully protects those areas," he said.

In recent rulings the Supreme Court said "the federal government cannot ... tell either state legislators or state executive branch officials 'you must do this, you must do that,'" Wishnie said.

The most recent case was the Brady gun control act in which the court said Congress cannot tell local sheriffs to run background checks to enforce a federal law.

Wishnie said Congress, on occasion, has attached conditions to use of federal dollars, such as setting speed limits if they want highway funds.

Sometimes the Supreme Court has upheld that as permissible, but in the first challenge to Obamacare, the court ruled that telling states they could only get Medicaid funds if they expanded them in a certain way "was too coercive" and violated the spending clause, Wishnie said.

He said in a way, it is common sense.

"The principle is that Congress and here, the president, cannot indirectly tell the locals what to do, which they are prohibited by the 10th Amendment from doing directly," Wishnie said.

President Trump's executive order would bring back the strictest version of Secure Communities, which in its initial form was used to conduct workplace and other community raids.

The government's own report on the program, however, rejected it as counterproductive to law enforcement and found it "resulted in the deportations of large numbers of noncriminals and minor offenders," according to the MPI, and not just serious criminals with the highest priority.

The new administration plans to add 10,000 more immigration officers to carry out enforcement.

In addition, the priority list of those to be deported has been widened to not only include immigrants convicted of a crime but those charged and not yet adjudicated.

Also a priority are immigrants who have used a false Social Security number and anyone, who "in the judgment of an immigration officer, otherwise poses a risk to public safety or national security."

"That is an incredible amount of discretion," James Bhandary-Alexander, an attorney with the New Haven Legal Assistance Association, said of the increased authority given to agents.

Bhandary-Alexander said the Trump administration also gives the impression that sanctuary cities are hotbeds of crime, but an analysis by the Center for American Progress found that crime is statistically lower in sanctuary counties as compared to nonsanctuary countiesm and economies are stronger.

Barrett said the president's order would necessitate a large investment in more judges, court facilities and holding areas for those awaiting a ruling. "It's a matter of physics," he said of he logistical problem, which can't be solved overnight.

"When we talk about removal from the country, it's important to remember that due process is required," Barrett said.

Krikorian said fingerprints taken in any arrest are available to the FBI and should make it easy for ICE to track immigrants.

"The infrastructure is there," Krikorian said. He said whether or not ICE decides to pursue removal of an individual should be its prerogative and not something impeded by other levels of government.

As for expanding the list of priorities to reach the vast majority of undocumented immigrants, "no group should be exempted for legal enforcement," Krikorian said. "We need to restore real enforcement."

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