Very few other areas of law have recently implicated the US Constitution as extensively as does US immigration law. Especially with this new administration and actions and attitudes it is inciting nationwide (and worldwide), there seems to be no end to litigation. Let’s first take Trump’s travel ban, which was recently struck down by the Fourth Circuit and which the Trump administration has asked the US Supreme Court to review. This ban barred the issuance of nonimmigrant foreign nationals from the six Muslim-majority countries Iran, Somalia, Sudan, Syria, Yemen and Libya for 90 days along with a 120-day freeze on Syrian refugee admission. The ACLU argued that it violated the First Amendment’s establishment clause that our government cannot denigrate or favor a particular religion, which the government argued that it did not target any religion but was merely reviewing security in countries noted as having high rates of terrorism. The Fourth Circuit struck down the ban as demonstrating unconstitutional animus towards Muslims.
The second recent action is Texas’ new law allowing police officers to decide how to question individuals about their immigration status and threatening law enforcement authorities with fines and jail time if they do not comply with federal requests. The city of San Antonio and three nonprofits are seeking to block this law arguing that it is unconstitutional racial profiling and erodes public safety by forcing victims into the shadows. The state argues that the new Texas law does not violate the 4th Amendment right to protection against unreasonable searches and seizures or the 14th Amendment right to equal protection and is not preempted by federal law.
The third recent activity is the set of suits by sanctuary cities denouncing the Trump administration’s withdrawing funds to them as unconstitutional. These sanctuary cities, which limit cooperation between the federal government and local law enforcement agencies, argue that it violates states’ rights under preemption and makes people less safe, since they will fear deportation upon reporting crimes. Immigration policy is considered the purview of the federal government and federal law preempts state law, but courts have set limits on what the federal government can require of the statues. There is case law that suggests that the federal government can only deprive funds to states when such funding is reasonable related to that particular policy. US District Judge Orrick in San Francisco agreed with this line of cases holding that “Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration strategy of which the president disapproves.”