Border and Enforcement News

Posted on: June 29th, 2018
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Greg Siskind Provides In-Depth Analysis of the Supreme Court Decision Upholding the Travel Ban

Greg Siskind provided his analysis of the 5-4 Supreme Court decision which upheld the travel ban. Below is an adaptation of the Twitter thread he provided the morning of the decision’s release.

The Court first reviews the background noting the process the White House used to ban nationals of eight countries from entering the US. Discusses 50-day review process of DHS and DOS and attempts to work with foreign governments.



WH asserted authority under Section 1182(f) which gives authority to the President to exclude groups of people from the US.

Plaintiffs argued that the ban violated the Immigration and Nationality Act section 1152(a)(1)(A) which bars discrimination based on race, sex, nationality, place of birth or place of residence. Also, violated the Establishment Clause of the Constitution.

Court held that President has authority under 1182(f) to do what he did. President gets broad deference and has “ample power” to do what he did. President just has to show entry of people “detrimental to the interests of the United States.”

Pretty definitive ruling here.


Court held that discrimination provisions don’t cover the President’s Section 1182 powers.


Court knocks down Establishment Clause claim (in short, issue of whether Trump’s prior anti-Muslim statements are relevant) by pointing out that the Proclamation was neutral regarding religion.

Now getting into the meat of the decision and will look for highlights worth noting (versus repeating what’s in the summary). The Court punted on the government’s contention that this was a question of consular nonreviewability. The Court said it was deciding the case without addressing that issue. I guess since the government won, they’re not going to complain.

Here’s the actual section of the INA at issue in case you were wondering.

This is troubling. Court questions whether the President even needs to give a detailed explanation of what he’s doing.

President can keep ban in place until he believes triggering condition that led to the ban is resolved.

Banning a whole nationality is not too broad a reading of 1182(f)

Court didn’t think much of plaintiff’s arguments regarding legislative history and Congressional intent.

Court rules that 1152 discrimination language only applies to visa issuance & 1182 deals with broader issue of admissibility. That argument makes little sense to me. Why would Congress have a problem with discriminating in visa issuance but good with it in admission context.




Court was ok with Plaintiffs’ argument that they had standing. Guess that made it easier to give the President the big win he wanted.

Court basically says it can ignore Trump’s anti-Muslim remarks because ban was rolled out in a neutral way and based on a non-racist reason (the inability to vet certain nationals because the sending country isn’t cooperating with the US).

Doesn’t matter if the policy is dumb.

Court formally repudiates Korematsu decision that okayed Japanese internment camps in WWII. Gee, thanks. Will a future court will do this decision a similar courtesy?

Now reading the dissents. First is from Breyer and Kagan. Issue is basically whether this was about national security or the President’s racism.


Evidence that the ban is based on racist animus is how the waiver process is being applied by the State Department. Promised guidelines never issued and few waivers are being granted.

Sotomayor and Ginsburg issued a separate dissent.



Sotomayor and Ginsburg don’t mince words. Calling BS.

Sotomayor and Ginsburg lay out a pretty detailed case showing incident by incident how Trump and his WH showed their true anti-Muslim intentions. This is the bottom line. Do you assume that none of Trump’s statements informed the policy or not? Seems pretty clear.

Sotomayor questions Court’s use of more limited “rational basis” standard for deciding Establishment Clause question. But says WH fails even applying that lesser standard.
















Sotomayor – Just because religion isn’t mentioned in the Proclamation, you can read between the lines and consider Trump’s litany of statements in interpreting.


This is interesting. Sotomayor notes a person involved in conducting the review had a history of anti-Muslim statements.

Not much more to say other than the next step in this process is for Congress to deal with the matter. They need to amend the INA and place limits on Section 1182. That obviously won’t happen until after the midterm election. And with that, a reminder that there are 133 days until the midterm elections.

For more information, view the full case.


Illegal border crossings remained high in May despite Trump’s crackdown

According to statistics released by the Department of Homeland Security, the number of migrants attempting to illegally cross into the United States has not been affected by the strict enforcement practices implemented by the current administration. Though border arrests dropped to historic lows in the months following Trump’s inauguration, migration trends have changed significantly. In March and April of this year, border arrests exceeded 50,000, the highest such totals of the administration. To combat this, the administration is pushing for the upgraded border wall, which will cost a staggering $18 billion, for stricter asylum procedures, and for augmenting other laws described by the administration as promoting illegal behavior.
The Rio Grande Valley of South Texas has been particularly heavily trafficked recently, with large numbers of Central American migrants being taken into custody according to CBP. During one specific 24-hour time span, 434 migrants were taken into custody, bolstering the area’s reputation as one of the most prevalent areas of illegal migration. The number of migrants who were apprehended was so large that many had to transport many of the individuals to other sections of the border to be processed. To compensate, the Justice Department has reassigned supplemental prosecutors to increase the number of individuals charged with federal crimes.

For more information, view the full article from The Washington Post.


CBP Announces Third U.S. Border-Wall Construction Project

On July 1, 2018 the third border-wall construction project began in San Diego, California. The project will replace around 14 miles of wall, currently between eight to ten foot of scrap metal, with an 18- to 30-foot bollard-style wall including an anti-climbing plate at its top. The project, starting close to one-half mile from the Pacific Ocean coastline and extending east to the base of Otay Mountain in East County San Diego, is one of the Border Patrol’s most important projects to date. CBP acknowledged that the current stretch of wall, constructed in the 1990s, was effective at inhibiting both pedestrian and vehicle crossing, but increased traffic at the border within the past 10 years and deterioration of the wall’s foundation motivate the upgrading venture. There are currently two other wall construction projects underway including a two-mile section of primary wall in Calexico, CA and a twenty-mile section of primary wall in Santa Teresa, NM.

For more information, view the CBP announcement.

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