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Legal Studies response to Executive Orders

January 30, 2017

Dear Legal Studies Students, Friends, and Colleagues:

We are deeply saddened and profoundly troubled by President Trump’s Executive Order signed on January 27, 2017, which immediately operated to bar refugees and legal permanent U.S. residents from seven countries from entering the U.S. The executive order explicitly classifies people on the basis of their national origin and religion. The impact of this order on you, our students, worries us greatly.  As President Schapiro said in his statement, our community and our education is enhanced tremendously by immigrants and refugees from all over the world. The university has promised to “take all the necessary actions to protect our students, faculty and staff.” And as President Schapiro announced today, the University “will refuse to provide information to the federal government regarding the immigration status of members of our community.”

We are troubled by the legal questions raised by this Executive Order. An unknown number of people, including children, are being detained at U.S. airports. Lawful, permanent U.S. residents (with green cards) have been detained or turned away.  Refugees fleeing torture, war, and political persecution are not being allowed to board planes in airports abroad - even with the proper visas. Over the weekend, federal judges issued partial stays on the implementation of the Executive Order. Reports followed that some officials with the Department of Homeland Security declined to follow these rulings.  We are rapidly approaching (are in?) a constitutional crisis.   

Right now, understanding the law is more important than ever. Everyone subject to U.S. law should be (or become) familiar with the balance of power among the legislative, executive, and judicial branches and the checks and balances legally required therein; with the way that law divides policymaking authority across a host of federal agencies and commissions; and with the constitutional balance of authority between the federal and state governments. Given the events of the last few days, it is crucial that we are able to have informed conversations about how executive orders work, how judicial authority functions, and what role Congress has in immigration policy.

We also encourage you to learn more about the way immigration and naturalization standards have historically been used to perpetuate inequality. Examples include the Chinese Exclusion Acts (which barred most immigration from China from 1882 to 1943), the Immigration Act of 1924 (which placed racial quotas on admission from each country, in an effort to limit immigration from countries beyond northern Europe), the internment of Japanese immigrants and Japanese Americans during World War II (for which the U.S. government apologized and awarded survivors reparations in 1988). And, of course, the United States’ troubling history of giving legal support to racial terrorism, segregation, and inequality within its own borders - from the original constitutional designation of slaves as 3/5th of a person for purposes of Congressional representation to Dred Scott to Plessy v. Ferguson and beyond.

While Americans have not always lived up to the values of religious liberty, human dignity, and equality that served as our founding principles, we have continued to work toward those goals. Law can be used as a sword; it can also be used as a shield to defend the rights of minority groups and to put an end to invidious discrimination on the basis of race, ethnicity, national origin, religion, gender, and sexual orientation. Laws and cases like Brown v. Board of Education, the Civil Rights Acts of 1964 and 1991, Romer v. Evans, the Americans with Disabilities Act, U.S. v. Virginia, and Obergefell v. Hodges demonstrate this in abundance. 

We know you have questions about the legal status of executive orders, the history of race and legal exclusion in this country, and the legal rules and precedents that judges will use to determine the ultimate constitutionality of this order.  We are planning open forums about these questions, and would love to hear what questions you have. In the meantime, our office doors are open to anyone who wants to discuss these issues.

Whatever your position on current events, we encourage you to make your voice heard in phone calls, letters, civil actions, and nonviolent resistance. Young people always have been critical participants in the struggle to make the U.S. live up to its ideals.  You have a unique perspective on these issues as Legal Studies scholars.  We know many of you come to Legal Studies thirsty to help produce justice in the world. To whom much is given, much is required.

Kind Regards,

Professors Joanna Grisinger, Robert Nelson, Laura Beth Nielsen, Heather Schoenfeld,  Shana Bernstein, Susan Gaunt Stearns

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