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Panel on Immigration Law Debates Trump's Use of Executive Power Ithaca, NEW YORK, September 14, 2017

A panel of law professors predicted that the court challenge to President Trump's rescission of legal protections for immigrants who entered the country as children will probably fail, although they said that Congress might act to replace the policy.

Trump's proposed rollback of the program known as the Deferred Action for Childhood Arrivals, or DACA, took center stage at a discussion on immigration and executive power, held on September 8 at Cornell Law School. More than 250 people attended the event, while many others listened via livestream.

Immigration and Executive Power Panelists (L-R) Michael Dorf, Cornell Robert S. Stevens Professor of Law, Ilya Somin of George Mason University, Eric Posner of the University of Chicago, and Eduardo Peñalver the Allan R. Tessler Dean of Cornell Law School (L-R) Michael Dorf, Cornell Robert S. Stevens Professor of Law, Ilya Somin of George Mason University and Eric Posner of the University of Chicago Student attendees Eric Posner, University of Chicago (L-R) Michael Dorf, Cornell Robert S. Stevens Professor of Law, Ilya Somin of George Mason University and Eric Posner of the University of Chicago Student attendee Michael Dorf, left, the Robert S. Stevens Professor of Law, and Ilya Somin of George Mason University Student attendees Michael Dorf, left, the Robert S. Stevens Professor of Law, and Ilya Somin of George Mason University

The panel took place two days after a group of sixteen Democratic attorneys general filed a lawsuit challenging the administration's order rescinding DACA, alleging the decision was based on the president's biased opinions against immigrants and Latinos. Nearly 800,000 immigrants who moved to the United States as children would be affected by the end of the DACA program, although Trump has given Congress six months to reform the policy.

"There have been legislative proposals to help this class of people since at least 2007," said Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, who moderated the panel discussion. "While Congress has not enacted such legislation yet, perhaps the deadline will force Congress to enact something to help them out."

Yale-Loehr pointed out that about 30 percent of all DACA recipients might have some way to obtain relief under current immigration laws. He urged all DACA recipients to consult an immigration lawyer to see if there is a way to legalize their status.

Cornell Law School professors have volunteered to provide legal assistance to Cornell students who are affected by the ongoing changes in immigration law, said Eduardo M. Peñalver, the Allan R. Tessler Dean at Cornell Law School. Any student who needs legal help on immigration issues should contact immigrationhelp@cornell.edu.

"At Cornell Law School, we have a special reverence for the rule of law, which means (among other things) that we have an interest in ensuring that the legal rights of our students, faculty, and staff are fully respected," Peñalver said.

The legal challenge to the proposed DACA rescission is based on five claims, including one alleging that the undocumented immigrants protected by the policy are entitled to equal protection. Michael Dorf, the Robert S. Stevens Professor of Law at Cornell Law School, said that claim closely parallels one made in the litigation challenging Trump's proposed travel ban that would prohibit visitors from six predominantly Muslim countries.

"President Trump doesn't just hate Muslims; he also hates Mexicans and has a record of saying so," Dorf said. The attorneys general, he added, are arguing that "the rescission of DACA, though otherwise lawful, is invalid because it's being undertaken for discriminatory motives."

What has weakened that claim, however, is Trump's contradictory statements about the young immigrants protected under DACA, also known as Dreamers, a name taken from the act proposed in Congress that would shield them from deportation.

"Although the president has been pretty clear with his anti-Muslim statements, he has said things like, 'He loves the Dreamers,' " Dorf said. "So his statements are not quite so clear."

One rationale the courts could use to block the revocation of DACA is the practice courts have followed in treating Trump differently than other presidents, said Eric Posner, the Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago Law School.

This tendency is evident in the way the courts have ruled against Trump's proposed Muslim ban over the past year, Posner said. In cases brought against prior U.S. presidents who have imposed immigration restrictions, the courts have upheld the restrictions, he said.

"It's possible to come up with constitutional arguments to try to block the revocation of DACA," Posner said. "But I just think the only real reason for doing that is this distrust-justified in my view-of Trump."

However, Ilya Somin, a professor of law at George Mason University, said the argument as to why DACA was legal when it was created by President Obama in 2012 was that it was a discretionary action by a president who chose not to enforce certain laws as vigorously as others. "If it really is something within the discretion of the president," Somin said, "that means that a new president can rescind it anytime he wants."