Is Trump’s Proposed Executive Order on Immigration Unconstitutional?

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Pictured: President Trump signs an executive order as Vice President Pence looks on (Photo credit JIM WATSON/AFP/Getty Images).

In early February 2017, the Washington Post published two leaked drafts of President Trump’s proposed new Executive Order regarding immigration. The proposed Executive Order is verbosely entitled “The Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility.” The main gist of the order is that it purports to “ensure that the United States does not welcome individuals who are likely to become or have become a burden on taxpayers.”

The Order clarifies that it is the policy of the United States to: (1) deny admission to any alien likely to become a “public charge,” (2) identify and remove any alien who has become a public charge and is subject to removal, and (3) seek reimbursement from immigration sponsors if the immigrant later requires public benefits. The Order defines “public charge” as a person who receives public benefits for which eligibility or amount is determined in any way on the basis of income, resources, or financial need. Some examples of public benefits listed in the order include SSI, Food Stamps, Temporary Assistance for Needy Families, Social Service Block Grants, and Temporary Assistance for Needy Families.

In response to this proposed order, some disability rights organizations spoke out against it, noting that it would have a hugely negative impact on people with disabilities. The Arc, a disability rights organization focused on ID and DD, wrote that the order marked the beginning of a “civil rights crisis” for immigrants with disabilities. Slate noted that this order basically amounted to a “threat[] to deport low-income immigrants.”

Certainly, this proposed Executive Order is frightening. It ignores the United States’ extensive history of welcoming immigrants, and places burdens on immigrants to prove they are self sufficient. Worse, it ignores the immortal words of Emma Lazarus inscribed on the Statute of Liberty, “Give me your tired, your poor, your huddled masses yearning to breathe free.” It flies in the face of America being a land of proud immigrants, the world’s melting pot.

But is the proposed Order unconstitutional?

To further explore this question requires  a basic review of Constitutional Law and the Equal Protection Clause, which is housed in the Fourteenth Amendment. This clause is the go-to citation when the government seems to be treating a disenfranchised group unequally under the law–think Brown v. Board of Education and Lawrence v. Texas, both of which cited the Equal Protection clause. In order to determine which legal test the court will apply to an equal protection claim, it is necessary to determine which “layer” of equal protection analysis this Executive Order will fall under. There are three different layers of Equal Protection Analysis:

(1) STRICT SCRUTINY

The court will hold the government up to the highest standard if the action in question affects a highly stigmatized population. Groups in the past that have been awarded this high standard include racial minorities, religious minorities, and aliens. The highest level of scrutiny will also be invoked if the action in question concerns a fundamental right, such as the right to marriage. In order to pass this high level test, the government must prove that there is a “compelling state interest” behind the policy that is “narrowly tailored” to achieve its result.

Generally, the court will find a government action unconstitutional under the strict scrutiny test. It is a very difficult test to pass, because the government is required to show a compelling state interest, and effective means through which to protect that interest. The one notable exception is laws that concern national security. National security is such a compelling state interest that the court has held even seemingly unjust and discriminatory actions, like Japanese internment camps, constitutional (Korematsu v. United States). However, in general, laws subject to the strict scrutiny test are often found unconstitutional.

(2) INTERMEDIATE SCRUTINY

If the group that is being targeted is still stigmatized and has a history of discrimination, but, for lack of a better phrase, is slightly less stigmatized, the court will apply intermediate level scrutiny. This is usually used when the government action will impact people based on their gender or sexuality–it is usually invoked when an action will disparately impact women or queer people. Under this test, the government must prove that the policy serves an “important government objective” and is “substantially related” to achieving the objective.

Interestingly enough, the first case to invoke strict scrutiny involved alleged discrimination to men. In Craig v. Boren (1976), the court found that a state statute that allowed women between 18 and 21 to purchase low-alcohol beer, but not men between 18 and 21, failed the intermediate scrutiny test. The court noted that while the statute purported to serve an important government objective, public safety, there was not a substantial relationship between the means used and the end pursued. In more modern times, intermediate scrutiny has generally been applied when a statute disparately impacts women, like in the US v. VMI case, where the court found that Virginia Military Institute’s policy of only admitting men failed intermediate scrutiny.

(3) RATIONAL BASIS

The lowest level of scrutiny is rational basis. It is invoked when the court believes the group in question has not been historically stigmatized. Groups that have been held to rational basis review in the past include felons, the elderly, low-income populations, and, relevant here, people with disabilities. It is very difficult for the court to find a law unconstitutional under this test, as the person challenging the law must prove that the government has “no legitimate interest” in implementing the policy, or there is no “reasonable, rational” link between the interest and the challenged law.

The court will generally find nearly every government action constitutional under rational basis review. It is such a low bar that court doesn’t have to inquire as to the actual purpose of the law, or to agree that it is effective in implementing the end. In some cases in the past, the government has not even bothered to provide a legitimate interest, and the court had provided one for them (Minnesota v. Clover Leaf Creamery). Therefore, if a law is subject to the rational basis test, it is almost always found Constitutional.

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So if a disabled plaintiff were to bring a suit against Trump’s Order, alleging it violates the Equal Protection Clause, he would first have to argue that the Order violates the rational basis test, because that is where the court has placed people with disabilities in the Equal Protection Analysis.

The Rational Basis Argument

The  plaintiff’s rational basis argument is unfortunately likely to fail. Although it might seem unfair that people with disabilities are subject to the rational basis test, because of their history of stigmatization, that is how the court currently sees it. Interestingly enough, in the historic case of Cleburne v. Cleburne, the Fifth Circuit found that people with disabilities should be subject to  intermediate level scrutiny, but alas, it was overturned in the Supreme Court, which held that they were still subject to rational basis review. To pass this test, the plaintiff would have to argue that Trump’s Executive Order does not pass the low-bar rational basis test, by proving that either (a) the government has no legitimate interest in the policy, or (b) there is no reasonable, rational link between the interest and the challenged law.

(1) The government seems to have a legitimate interest in the policy

The government could pretty easily argue that it has a legitimate interest in implementing the policy. Perhaps with the rational basis test in mind, the Executive Order is framed in a way that emphasizes that the main objective is to save tax dollars. The first paragraph notes that the Order has a goal of “protecting American taxpayers and promoting immigrant sufficiency.” While this might not seem as important an interest as say, national security, under rational basis the court almost always find any presented government interest constitutional, so the court is not likely to find an issue here with the legitimate government interest.

(2) There seems to be a reasonable, rational link between the interest and the challenged law

The hypothetical disabled plaintiff could also allege that the Executive Order failed the rational basis test because there was no reasonable, rational link between the interest and the challenged law. However, this would also likely be unsuccessful. While the Executive Order seems unfair and would leave many low-income immigrants unsure of their legal status in the states, including people with disabilities, it is however rational to reason that by accepting fewer people into the United States who get benefits and don’t contribute heavily to the tax base, other taxpayers will have a higher tax burden. Every person who does not work and instead receives public benefits is another cost that the government must take into consideration when determining how much to charge in taxes. One could certainly argue that it is worth it to pay higher taxes to support people who cannot work–but the question here is not about fairness. It is about whether there is a rational relationship between the means of the Executive Order and the ends it purports to serve. And here, it is unlikely that the court will find it unconstitutional.

(3) Closing Thoughts

As unfair as it may seem, Trump’s proposed Executive Order doesn’t seem to violate the 14th Amendment, at least under the court’s current interpretation of the Equal Protection Analysis. Perhaps in the future, the court will recognize people with disabilities as a protected class, and hold actions impacting them to strict scrutiny. However, even in this case, a disabled plaintiff would have to prove that this Executive Order has a disparate impact on people with disabilities, which may be difficult because people with disabilities are nowhere mentioned in the order, which focuses on means-tested public benefits. Notably, the order focuses on income level as the determining factor, not disability status, when determining if an immigrant is eligible to enter the United States. It also doesn’t mention programs specifically geared toward people with disabilities, like Social Security Disability Insurance. Certainly there is a significant correlation between people with disabilities and people living in poverty. But this might not be enough for the court to find that the Order has a disparate impact on people with disabilities. And because the Order is likely to be subject to the rational basis test even if the court determines there is a disparate impact, it will likely not be found unconstitutional.

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