Five critical immigration questions for Trump’s Supreme Court pick


July 6, 2018

By Brian Lonergan

The impending hearings for the nominee to replace Anthony Kennedy promise to be a scorched-earth affair. President Trump’s adversaries are lobbing familiar charges: the judge in question would overturn Roe v. Wade, allegedly rolling back the clock on women’s reproductive rights.

Oddly ignored has been the most divisive issue facing our nation today: immigration. Senators who want to legitimately vet this judge on extremely consequential matters likely to arrive on the Court’s docket in the near future should ask the following legal and constitutional questions:

Do you believe the federal government has supremacy over cities, counties, and states when it comes to immigration law?

Sanctuary laws have become the front line in the immigration debate. After several cities big and small began proudly declaring themselves sanctuary cities, states are now following their lead. California has openly defied federal law with the passage of SB 54 which, most notably, prohibits state employees from cooperating with federal immigration officers’ detainer requests on illegal aliens. Illinois has gone all-in on defying the feds, and more states are sure to follow.

After Attorney General Jeff Sessions threatened sanctuary cities with the loss of law enforcement grants, cities have sued the Justice Department and been largely successful in the lower courts. Appeals to the supremacy clause of the Constitution have largely fallen on deaf ears. We need to know where a Supreme Court nominee stands on this issue as these cases will most assuredly be heard by the High Court.

Does the federal government have the authority to count how many citizens and non-citizens are presently in the country?

When the Commerce Department announced it would be adding a citizenship question to the 2020 Census, open-borders advocates melted down, claiming the question is racist, and that the government does not have the right to ask the question. Of course, the question was first proposed by Thomas Jefferson 218 years ago and it was added to the Census in 1820. A lawsuit backed by former Attorney General Eric Holder claims that the question will result in a reduction of social services for low-income families, but there is much more at stake here.

Rep. Mo Brooks (R-Ala.) has sued the U.S. Census Bureau over the agency counting illegal aliens in determining state populations. The suit contends that Alabama would lose a seat in the House of Representatives and a seat in the Electoral College if illegal aliens are counted in congressional apportionment. At issue here is not merely allocation of social welfare dollars, but the integrity of our representative form of government and our electoral system.

Does the chief executive have the power to restrict certain individuals from entering the United States based on national security concerns?

This matter appeared to have been decided in the recent Trump v. Hawaii decision, but will not go away that easily. The Immigration and Nationality Act clearly spelled out broad powers for the president when it comes to restricting entry into the country by people deemed to be a threat to national security. Undaunted, the open borders left successfully judge-shopped until they found like-minded jurists willing to create national security policy from the bench.

In Chief Justice Roberts’ opinion in Trump v. Hawaii, he clearly stated that Trump’s concern of select countries’ inability to vet their nationals is a legitimate national security concern. More importantly, the Court held that this power to exclude resides with the chief executive. This issue—or some variant of it—will resurface at some point.

What are the limits on the power of the president to reverse his predecessor’s actions?

Unless Congress can line up enough votes to enact comprehensive immigration legislation, the matter of those who fall under the Obama-era Deferred Action for Childhood Arrivals (DACA) program will remain unresolved. A federal district judge blocked the Trump administration’s DACA phase-out, claiming that Trump’s Department of Homeland Security cannot undo what the same department under Obama had done before.

The case is now before the Ninth Circuit on appeal. Trump’s prospective High Court nominee may be asked to decide on this matter, and we should know what we’re getting.

Should foreigners be allowed to remain and work in the United States on student visas after graduation?

Student visas allow foreign students in America to work under certain conditions while pursuing their education. Thanks to the business sector’s unquenchable thirst for cheap labor, this program has been manipulated to the point where foreigners who have completed their education are unlawfully allowed to remain here and work. Americans are thus squeezed out in their attempts to land the same jobs.

The Immigration Reform Law Institute recently won a victory on behalf of those American workers when our clients were granted standing to sue DHS over these policies. The widely disseminated idea that there are not enough American citizens to fill IT positions has been debunked. The Supreme Court and President Trump’s second appointment there may have the final word.

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: Brian Lonergan, Five critical immigration questions for Trump’s Supreme Court pick, The Washington Examiner, July 6, 2018

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.