Ask Congress, Not Courts, For Immigration Reform

The presidential race has brought heightened attention to immigration policy. One of the most important immigration issues has been quietly playing out in the courts and few people have noticed. Yet this one issue will have a ripple effect across the U.S. economy.

In approving the Trump administration’s application to lift an injunction in U.S. Department of Homeland Security v. New York last month, the U.S. Supreme Court sent a clear signal that a majority of the justices seriously question the viability of nationwide district court injunctions.

While the court’s ruling had the immediate effect of allowing the Trump administration to begin implementing its new wealth test for immigrants, the unusual written opinion by two of the justices expresses a viewpoint on the impropriety of this remedy that may have long-lasting effects on all jurisprudence, regardless of whether this particular immigration regulation survives legal challenge.

In a written concurrence, Justice Neil Gorsuch, joined by Justice Clarence Thomas, slammed nationwide injunctions for sowing confusion in the courts and foreshadowing that the court will have to deal with them.

This opinion, presaged by an op-ed article written by U.S. Attorney General William Barr in the Wall Street Journal titled, “End Nationwide Injunctions,” is not the first time members of the court have signaled that they are fed up with nationwide injunctions. And it will not be the last.

For several years now, it’s been a race to the courthouse to get a judge to slap an injunction on a disfavored policy. Conservatives seeking to block the Obama administration’s Deferred Action for Childhood Arrivals or Deferred Action for Parental Accountability initiatives, look for sympathetic judicial ears from federal judges in Texas; liberals trying to stop Donald Trump’s executive actions run to Massachusetts or Northern California. As a result, a single federal judge has been able to dictate national policy.

This trend has been particularly glaring in the context of immigration law. Why? Congress — which has plenary power over immigration law— has failed to act. The demise of the bipartisan Gang of Eight’s comprehensive immigration reform bill left a vacuum of leadership on immigration issues.

President Barack Obama used executive orders to initiate much-needed reforms (or sidestep Congress, depending on your viewpoint).

While eschewing Obama’s use of executive orders on the campaign trail, Trump has been even more prolific in exercising executive power, starting with the initial travel ban issued weeks after taking office. His administration has continued to issue executive orders and presidential proclamations on immigration at a breathtaking pace and volume with no apparent input from Congress.

The controversial nature of these developments has meant that immigration advocates have increasingly resorted to what they consider friendly jurisdictions to try and put a hold on these executive actions. And, the fact that the Trump administration too often has issued and sought to implement executive orders immediately, with no warning and no transition period, has created an urgency that many courts have found compelling in placing a temporarily hold on the proposed action while the lawsuit proceeds.

In a few cases, such as the travel ban executive orders, businesses have joined litigation filed to maintain the status quo so they could buy time to figure out the impact on their employees and develop policies necessary to adapt to the proposed changes. An estimated 40 nationwide injunctions have been issued over Trump’s policies in slightly over two years, more than double the number issued during the entire eight years of the Obama administration.

While your view of nationwide injunctions as good or bad may depend on whether you favor or disapprove of the underlying policy that is challenged, the reality is that these injunctive requests often place courts in difficult positions because they essentially are being asked to develop policy that would be a Congressional responsibility in a normal political climate.

This can take pressure off Congress to promptly do its job and take the steam out of efforts to build public consensus to support legislative action.

As Barr pointed out, Congress has been silent on the DACA issue since the court enjoined the Trump administration’s termination of DACA. Now, 800,000 dreamers wait anxiously for the Supreme Court to address the legality of the actions taken by the Trump administration when momentum had been building for a possible legislative fix before the courts got involved.

This pattern of increasing reliance on the judicial system to fix national immigration policy issues is not sustainable. The U.S. business community has a significant interest in this country’s ability to attract and retain the best and the brightest so we can remain competitive.

Global mobility solutions cannot rest on the whim of the judicial process. The issues often are not well-framed for judicial resolution and the process takes far too long. Also, there is a distinct potential for policy advocates to try and expand this injunctive remedy to other areas covered exclusively by federal law.

In this context, businesses should be more active advocates for long-term legislative cures — not just asking courts to treat the symptoms. Companies cannot continue to rely on the possibility of nationwide injunctions whenever the executive branch rolls out an immigration or other policy that runs counter to their economic interests.

Nor can the economy sustain an exodus of U.S. businesses to Canada or other countries that offer more predictable immigration policies to attract high-skilled global talent. U.S. business faces skills shortages and fierce competition for talent (over 2 million jobs in the STEM fields remain unfilled in the U.S.) and restrictive immigration measures that can’t be blocked in court will only create greater unpredictability for the U.S. economy.

The conversation over immigration needs to shift from border walls and travel bans to how the constructive use of immigration is essential for making America more competitive globally.

As Bob Dylan put it, “You don’t need a weatherman to know which way the wind blows.” The court has clearly forecast that injunctions may not be a viable option for much longer.

Businesses should consider getting behind immigration reform and lobbying Congress more vigorously to exercise its plenary power and enact immigration legislation.

Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.

This article was originally published on on Feb. 27, 2020.

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