News reports saying that judges have "stayed" Donald Trump's executive order banning immigration from several Muslim-majority countries, as well as a temporary halt to all refugees, are somewhat misleading. The stay only applies to the narrow class of individuals who are currently in the US but being detained at the airport -- basically, those persons who were in the air at the time of the order. Persons who had valid visas but remain abroad -- whether it is green card holders seeking to return home or refugees awaiting their flight to safety -- are not covered.
The question I have is whether any judge will enjoin that portion of the order -- the one currently blocking valid visa holders abroad from coming to the United States.
It's a tough sell legally. Courts have been reluctant to enforce constitutional rights outside of American soil. In general, a person in a German or Syrian airport has no rights an American court is capable of enforcing. Add that to the "plenary powers" doctrine, which suggests that the federal government has virtually untrammeled power over immigration, and the legal case looks grim. Hence we have precedents that say that the United States can exclude immigrants based solely on nationality -- even though such discrimination would be clearly unconstitutional in a "normal", on-American-soil case. And that's a good thing for Trump, given that his advisors have publicly stated that the order he promulgated was deliberately designed with anti-Muslim sentiment in mind.
Yet one could argue that the cases which explicitly allow such discrimination predate the judiciary's modern jurisprudence on matters of race and other "like" identities. Our presumption against permitting laws which are motivated by, or discriminate on basis of, racial, ethnic, religious, or national-origin concerns are much stronger than they were back when the Court was upholding the Chinese Exclusion Act.
Is this a winning argument? I'm honestly dubious, though I'd submit that it isn't frivolous. But let's say it's wrong. What if a district court judge nonetheless accepted it, and issued a stay prohibiting American officials abroad from enforcing the order as against persons who had hitherto valid visas? Eventually, she'd probably be reversed -- something that happens to district court judges on the regular. In the meantime, perhaps some more refugees would be able to get on flights in the ensuing confusion. Some more people who we could save, would be.
Robert Cover's book Justice Accused deals with abolitionist judges tasked with enforcing the Fugitive Slave Act -- what strategies did they take? How did they manage their competing commitments to their deep moral principles and the formal legal structure they were embedded in? A similar situation was faced by consular officials during the Holocaust -- the heroes were those who kept issuing visas to Jewish refugees even when they lacked authorization from their home governments. Their victory was not that they eventually "won" in the formal legal sense; they did not persuade their superiors to adopt a different view. Their victory was that in dragging their feet a little longer, in kicking up that extra bit of dust, a few more people were saved than otherwise would have been.
The challenges being launched now might not change immigration or constitutional law to protect against Donald Trump's predations. It is worth stressing that in a democratic state, the fundamental responsibility for maintaining a just state lies with the people in their democratic capacity -- if judges cannot or will not bail us out, the wrong still primarily lies with us, not them. Judges are not cure-alls for our own democratic failures. But between now and the final decision, they still have a role to play as bureaucrats capable of doing what bureaucrats do best: dragging their feet and gumming up the works. It's not the heroism we want. But it may be the heroism we need.
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