“WE HAVE some bad hombres here”, Donald Trump said in his third debate with Hillary Clinton, “and we’re going to get them out”. Ridding America of undocumented immigrants with criminal records is, rhetoric aside, not terribly far from Barack Obama’s position; he prioritised the deportation of people found guilty of violent and drug-related crimes. In practice, though, Mr Trump’s recent crackdown has ushered in a new era where none of the 11m unauthorised immigrants living in America feels especially secure. Mr Trump’s get-tough policy received two quite different messages from federal courts on May 30th. One, from the Supreme Court, limited executive discretion in the realm of deportation without ever naming Mr Trump. The other, from the Ninth Circuit Court of Appeals, upheld the deportation of a longtime Hawaii businessman and father of three while at the same time condemning the 45th president’s stance on immigration as “contrary to the values of this nation and its legal system”.
Mr Trump’s promise to deport law-breakers did not figure into the text or reasoning of the court’s decision in Esquivel-Quintana—the ruling was decided by ordinary methods of statutory interpretation and the government’s hardline position against Mr Esquivel-Quintana was set when Mr Obama was in office. But between the lines of the 8-0 decision lies an implicit message for the new administration: the courts will not bow down to executive determinations that long-time residents can be deported for the flimsiest of causes. The Board of Immigration Appeals will not receive a rubber stamp from the Supreme Court when its decisions seem inconsistent with a sensible understanding of the law. In the words of Jeffrey Fisher, the lawyer who argued Mr Esquivel-Quintana’s case, “this decision shows that even when confronted with more workaday immigration matters than the travel ban, the Supreme Court will carefully scrutinise governmental positions for their legality and won’t just roll over when faced with assertions of executive prerogative”.Read More