Immigration judicial clapback

Dear Readers,  As a lawyer, legal rulings are fascinating and have societal implications.   I try to share these observations with you.  This week, I want to focus us on legal developments with our immigration policy.

As a country, there is a general consensus that our immigration system is broken, but we have been unable to reach a congressional solution to fix it.  President Trump has stepped into this power vacuum with Executive Orders dismissive of legal restraints; to be fair, President Trump is only building on the extra-legal trail-blazing of Presidents Obama and Biden, blowing up Executive power.

A series of court rulings is increasingly frustrating the goals of the Trump Administration.  Much of what it has been doing is premised on emergency powers nestled in the 1787 Alien Enemies Act (AEA).

At its core, the Trump Administration argues Venezuelan gangs pose an emergency as its premise for being able to exercise unprecedented powers.  It says gangs are either an invasion or a predatory incursion, creating a national emergency and triggering unlimited powers.  A number of recent decisions show courts are not buying this position.

Because of this alleged emergency couched under the AEA, President Trump federalized the California National Guard and sent Marines to occupy Los Angeles and assist ICE agents in aggressive immigration enforcement tactics.  The Reconstruction Era (1878) and the Posse Comitatus Act (PCA) prohibit the use of the military for civilian policing.

On September 2^nd, Charles Breyer, a U.S. District Court Judge in California, ruled the Los Angeles occupying force was a violation of the PCA.  In doing so, he characterized the Government’s positions as, “In other words, we’re going to see federal officers everywhere if the president determines there’s a threat to the safety of federal agents?”

The federal government has no right to violate the constitutionally protected sovereignty of a state or city. President Trump has threatened “big-footing” the authority of the Chicago Police Department to fight crime locally by sending in the National Guard.  This makes for “good television,” but, as Justice Breyer has found, it is not how we function as a country.

This past May, the United States Supreme Court paused deportations in Texas made under the authority of the AEA.  It required the 5^th Circuit Court of Appeals to also consider due process requirements.  This was just a band-aid and does not foreshadow a final holding.

Also, on September 2^nd, the 5^th Circuit, in a 2-1 split opinion authored by Judge Leslie Southwick (a George W. Bush appointee in 2007), ruled against the Trump Administration.  Judge Southwick concluded, “A country encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States.”  Hence, there was no justification for seizing emergency powers under the AEA.  This decision is likely to be appealed to the United States Supreme Court.

This is the first Court of Appeals decision on the immigration levers used by the Trump Administration.  Things are even more bleak at the District Court level.  While the Supreme Court has placed restraints on judges for nationwide injunctions, it has not halted more geographically narrow opinions.

On August 31^st, a District Judge from Washington, D.C., halted the deportation of over 600 Guatemalan “unaccompanied” children in Texas – yes, this is reminiscent of a similar earlier decision by U.S. District Judge James Boasberg about flights to El Salvador.  The legal issue was the same: the failure to provide sufficient notice of removal and an opportunity to a hearing, our bedrock “due process” right of all people in the U.S. guaranteed by the Constitution.

Temporary Protected Status (TPS) grants eligibility for asylum status; Congress authorizes TPS in renewable applications.  On his last day in office during his first term, President Trump designated Venezuela as a humanitarian crisis and directed his Department of Homeland Security (DHS) to approve asylum claims.  President Biden’s DHS extended this TPS eligibility for over 600,000 Venezuelan immigrants to October 2, 2026.

This year, President Trump’s DHS unilaterally vacated its TPS status.  On August 29^th, the 9^th Circuit Court of Appeals upheld a lower court order temporarily stopping it.  

This winds us back to the initial comments above.  Whatever is done about it has to be legal and orderly.  The adherence to the law is what makes us great and we should be thankful our courts take seriously their role as legal watchdogs.  This is true even with protecting our borders.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.