 We're going to carry on the discussion with some issues related to constitutional and international law and immigration. We've got five panelists this morning, and we're going to start with Matthew Lindsay from the University of Baltimore, who's going to tell us a little bit about the history of immigration law. Good morning. Really wonderful to be here. I want to again thank Peter Margulies for convening this, and also the members of the law review, who have so much to do with staging this event in the first place, and who are going to be working hard in the coming months to publish the papers. The title of my talk is the perpetual invasion, and the word invasion there is supposed to be in scare quotes, not only to reassure you that I don't actually think the U.S. is undergoing an immigration invasion, but also to announce that this metaphor of invasion has been a rhetorical centerpiece for a really long time, not only of American political culture around immigration and immigration regulation, but also in the legal construction of this vast extra-constitutional and largely unrestrained federal power to regulate immigration. So in the next 10 or 12 minutes, I'd like to explain how the U.S. came to possess this power, and then conclude with a few words about what President Trump's approach to immigration, both his political demagoguery and his actual policy, might mean for the future of constitutional immigration law. So the modern federal immigration power, which is commonly known as the plenary power doctrine, is constitutionally exceptional in a couple of different ways. And first is that it derives not from any enumerated power, but is, as the Supreme Court has written on many occasions, an incident of sovereignty belonging to the government of the United States. And the second way is that partly as a result of this, immigration is really buffered against judicially enforceable constitutional constraints, including constraints like the First Amendment or the due process and equal protection clauses that, at least on their face, certainly don't distinguish between citizens and persons. And as many of us know, the consequences of this arrangement can be really profound. Even people who've lived legally in the United States for many decades often lack robust constitutional protections against, for example, often very lengthy detention during removal proceedings or even selection for removal based on what would otherwise be protected speech or association. Although there is a certain aura of most naturalness that surrounds the inherent sovereignty model today, it is in fact a relatively modern creation. The U.S. Constitution itself is silent on the authority to regulate immigration. And in fact, throughout the first century of the nation's history, immigration regulation was neither constitutionally exceptional nor even exclusively federal. In fact, really until the 1870s, the states and localities were the primary regulators of foreign migration. Where, then, did this modern extra-constitutional immigration power come from? Well, as Peter mentioned in his opening remarks, the short answer is the Chinese Exclusion Case, decided in 1889. So in the Chinese Exclusion Case, Justice Stephen Field explained that unrestrained federal authority was necessary to, as he wrote, preserve the nation's independence and give security against foreign aggression and encroachment. In the opinion, which I'm sure some of you have read, famously dwells on the menace posed by Chinese immigrants, uncivilized, servile habits of life and labor. As Field wrote, they remained strangers in the land residing apart by themselves and adhering to the customs and usages of their own country, a failure to assimilate that he attributed to intractable differences of race. For Field, the effects of cheap, servile Chinese labor on American workers wasn't so much a commercial issue as one of national security, of defending the nation against what he called an oriental invasion of this unassimbleable race that was, as he said, dangerous to our peace and security. And critically, for our purposes today, he said such a policy is conclusive upon the judiciary. Four years later, the court then extended this principle to cover not only the exclusion of aliens outside U.S. borders, but also the expulsion of resident aliens. And in fact, the court continues to this day to affirm the constitutional exceptionalism of the immigration power, as though it's a kind of natural, self-evident consequence of sovereign nationhood. So in light of the decisions over hostility toward the Chinese, it's kind of tempting to interpret the doctrine announced in that case, this plenary power doctrine as a legal expression of the anti-Chinese racism that really pervaded of gilded age political culture. In some respects, of course it was exactly that. Yet the basic terms in which lawmakers and judges repeatedly condemned the Chinese menace were not unique. In fact, there are remarkable parallels to the nearly contemporaneous critique of so-called foreign popper labors from southern and eastern Europe. And to make sense of this really ubiquitous trope of alien invasion during this period, the late 19th century, and especially the court's conflation of immigration regulation with the imperatives of national security, I think it helps to take a step back from the immediate context of Chinese exclusion and to consider what I would call a broader political economy of foreignness that really applied both to Chinese and New European labors. So over the first half of the 19th century, even as political and economic anxieties around immigration mounted, as nativist movements gained influence, especially in the 1840s and 50s, most Americans continued to believe that so long as European immigrants at least were well-diffused throughout the population, the kind of warm bath of economic freedom and political fellowship would dissolve away the old world residue of corrupt European monarchy, instill them with habits of independence and political freedom and devotion to their adopted country. In the final decades of the 19th century, though, this confidence was really shattered by a two-front immigration crisis that contemporaries judged the Cooley problem in relation to Chinese immigrants and the problem of foreign popper labor for Europeans. In contrast to the so-called foreign poppers of the past, Chinese Cooleys and European popper labors competed in the labor market with a vengeance. They weren't dependent. They didn't siphon money out of the public purse. They competed in the labor market with a vengeance and offended American ideals precisely through an excess of economic competitiveness. Now, the language I quoted from the Chinese Exclusion case in a minute gives a flavor of this critique as it applied to the Chinese. Indeed, in the debates over Chinese exclusion, lawmakers dwelled at length on the destructive effects that Chinese labor had on the civilization and living standards of Americans. The California Senate, one of the major advocates of the Exclusion Act, complained, to compete with the Chinese, our labor must be entirely changed in character, in habits of life, in everything that the Republic has required him to be. And these illustrations, I think, help make the point. The first titled What Shall We Do With Our Boys shows a racialized Chinese labor. He's taking over every industry while a bunch of white workers stand idle. The second one, which is actually from 1988, it's mislabeled here, kind of speaks for itself, but certainly invokes an image of uncontrolled incursion into the United States. The nearly contemporaneous condemnation of so-called popper labors from southern and eastern Europe, in turn, really closely track the anti-Chinese critique to a remarkable degree. In both cases, fitness for the American labor market, hence fitness to be in the country, was measured by the inclination of the immigrant to maintain a respectable, what was called an American standard of living. And accordingly, critics of immigration devoted really extraordinary attention to European labor's habits of consumption, literally documenting what they ate and where they slept. These habits of consumption, in turn, were understood to be rooted in natural racial endowments associated with their countries of origin, right? Fixed at birth and impervious to any kind of acculturation. And this economic pathology, critically, threatened not only to degrade the labor market, but also to destroy the citizenly virtues of economic freedom and independence among workers. And so, too, did critics of European immigration echo the trope of foreign invasion that was so prominent in the context of Chinese exclusion. As one US senator explained, European popper laborers were the goths and vandals of the modern era. They come only to lay waste, to degrade, and to destroy. They bring with them ignorance, degraded morals, and a low standard of civilization. And again, the images here help. The first illustration makes explicit this parallel between Chinese laborers and Europeans. The guy on the right is tagged as an Italian. You can tell by the funky pants. And the second, which is mislabeled, it's actually titled The Mortar of Assimilation, illustrates the perceived failure of European assimilation. Everybody's blending in quite nicely. They're being stirred by the spoon of equal rights, except this incorrigible knife-wielding Irishman sitting over there. So for both groups, Chinese and New Europeans, the dangers to American political life could no longer be controlled by controlling access to political participation. And this is really a critical turning point, because now they're mere presence in the United States. The possibility of them participating in the American labor market threatened to degrade the quality of American citizenship. And this trope of invasion was more than just a colorful political metaphor. It was precisely this perception of national vulnerability, this sense of a peaceful invasion by the graded foreign menace that underwrote the federal immigration power. A power that, more than anything, was adapted to the defense of American sovereignty and citizenship against foreign encroachment and aggression. Which brings us back to President Trump. For the past two years, Donald Trump first as a candidate, then as president, has offered really spectacular proof that the invasion metaphor continues to resonate with many Americans. He announced his candidacy with lurid images of Mexican drug dealers and rapists pouring across the southern border, a problem that could only be solved, he said, by constructing a big, beautiful and impregnable wall. Then came the flood of Islamic terrorists, masquerading as refugees from the Syrian Civil War. His solution, of course, was a Muslim ban. This promised to protect the American people, their physical security, their jobs, their health, their culture against an invading foreign menace was, as others have said, a real centerpiece of Trump's presidential campaign. And it worked, right? He won. And then all of seven days into his presidency, he made good on his promise and passed the first of his three so-called Muslim bans. Well, he would recall that. And yet, I want to suggest, admittedly somewhat uneasily, that through his disarmingly unapologetic and effective scapegoating of unauthorized immigrants and refugees, the president had actually performed a public service of sorts, at least since the end of World War II. Courts applying the plenary power doctrine have generally ignored its historical provenance, right? Often not even citing the Chinese exclusion case, the one, the place where it all started. Instead, they explained the extraordinary breadth of federal authority over immigration in the much more legally respectable language of sovereignty and security. Now, though, the president has really breathed new life into what are the long suppressed premises of alien invasion, existential threats to the republic, and really just unadorned nativism in a lot of cases. And he's done this with a kind of frankness that we haven't seen in generations. And this is why, as apprehensive as many of us were about the Supreme Court's review of the travel ban, the case did appear to offer a really rare opportunity for the court to address the plenary power doctrine head-on in its most honest, unvarnished form. The case has, of course, now been dismissed as moot, but is likely to be back before the court within a year or so. In the meantime, though, I wonder, perhaps too hopefully, whether the spectacle of the travel ban may have cast a revealing light on another case that's before the court right now, and that is Jennings versus Rodriguez. Jennings addresses whether non-citizens held in long-term detention an incredibly important issue right now, whether probably half a million or more citizens will be detained this year, have a right to a periodic bond hearing with the possibility of release. And although this isn't nearly as politically sensational as the travel ban challenge was, it nevertheless carries really important implications for the future of the plenary power doctrine. In the last time the court addressed the issue of long-term mandatory detention in 2003, it upheld a provision of the INA providing for detention for certain criminal aliens pending removal, even when that confinement lasted well over a year or even several years. So what does this have to do with the invasion trope? The court's decision in that case, it's DeMauro versus Kim, relied on exactly the same national security rationale for plenary federal power that was at issue in the travel ban case and that will be at issue going forward. Whenever the government invokes that rationale as it has in Jennings versus Rodriguez, a key question, as Sahar talked about earlier, is whether the justices will look behind this bare assertion of a national security interest, right? And the remarkable thing is that several of the justices over the past 15 years or so have indicated a willingness to do exactly that and to apply at least somewhat more scrutiny to the government's asserted national security defense of an immigration provision. And I am hopeful that the bizarre tableau of the travel ban, especially the president's remarkable public statements, is practically admitting that the focus on nations rather than religion was a kind of fig leaf, will put the justices in a somewhat better mood to think critically, to think at least more critically than they have in the past about the assertion of national security as a kind of categorical warrant to do whatever the government wants when it comes to immigration. Thanks. So next we're going to hear from Stephen Lagonsky, sorry, who's the Washington University professor emeritus and the former chief counsel of the citizens immigration service that he's going to talk about exactly about, right? Well, thank you very much, Diana. Whoops. Thank you also to, thanks especially to Peter and to Chelsea and I met Katie and Jennifer last night and all the other law review students who have done such a great job in organizing this splendid conference, apart from the intellectual benefits of it, for me it's an extra bonus to get caught up with a number of long lost friends. So this has been great. I'm going to talk about what I see as a trend that I've noticed over the past several years. I think there has been a tendency for both legal and media critics of pro-immigrant policies to argue that those of us who advocate those policies are really making a big mistake because all we're really doing is inviting a conservative backlash. Or they argue more specifically that when we defend the broad executive power of President Obama to issue DACA and DAPA, those arguments are going to come back to haunt us when, as is now the case, we have a more conservative president whose anti-immigrant policies are subject to challenge. And suddenly we have to resist some of those very same arguments about how broad the executive power might be. In fact, some of the panelists who are here today, including scholars who might count as personal friends and for whom I have exceptional respect, have made a summary of all of these arguments. I won't mention any names, why don't we just call them Peter? Other critics, Morris Serbic, essentially accuse us pro-immigrant advocates of being hypocrites and in fact, short-sighted hypocrites at that. So these kinds of arguments I think have been particularly common in the context of DACA and DAPA. And I believe they take at least three different forms. Form number one is this. If the courts were to set a legally binding precedent upholding programs like DACA and DAPA, that precedent would validate broad executive power and therefore would help to support Trump's travel ban and Trump's rescission of DACA. And in fact, even outside the immigration context, it's going to help to validate other presidential non-enforcement policies, presidents who are hostile to the environmental laws or the tax laws or the civil rights laws or the labor laws and so on. Form number two of the argument is, well, legal issues aside, the very issuance of DACA and DAPA has changed or at least reinforced political norms that presidents will be able to cite when they go on to seek to exercise other broad executive non-enforcement powers. Form number three is that programs like DACA and DAPA, as well as other pro-immigrant initiatives, are going to trigger a political backlash among the public. A backlash that will in turn go on to do things like help elect a president like Donald Trump who did campaign on an anti-immigrant platform and who then once in office went on to take some virulently anti-immigrant executive actions. So I want to be clear that the critics I'm referring to are not necessarily, and in fact frequently, are not anti-immigrant at all. I know some people who are of this view whom I would describe as particularly compassionate and actually immigrant advocates in many other immigration settings. Also, to be clear, and just to preempt the claim that I'm attacking a straw person here, I do want to say that I'm not suggesting that all of these critics have made all of the arguments that I just described, but every one of the arguments I just described has in fact been made by at least someone. So I want to take them up one at a time. First, the notion that if DACA or DACA were ultimately upheld, then those precedents would support future executive actions like the travel ban and the rescission of DACA. The implication is that there's an inconsistency between the arguments that many of us made in defending DACA and DACA on the basis of broad executive power and now resisting broad executive power when it comes to the travel ban and other things. That claimed inconsistency in turn is on the linchpin for the other two claims. A, you guys are a bunch of hypocrites and B, you're short-sighted hypocrites at that. Refuting the hypocrisy critique, I think, is child's play. First of all, if it is hypocrisy to make one argument in defense of DACA and DACA and then resist an analogous argument later when the shoe is on the other foot, then it is also hypocrisy to resist the arguments in favor of DACA and DACA and then to make opposite arguments when it comes to defending the travel ban. So if there's any hypocrisy involved, it's charging liberals with hypocrisy, but not conservatives. But I think the name-crawling is irrelevant. It's not helpful. And in any event, I really don't think that either side is being inconsistent or particularly hypocritical because I don't think the arguments are difficult to square. And that's because the specific legal issues that arise in the DACA and DACA litigation have almost nothing relevant in common with the legal issues that have been arising in the travel ban case or in the DACA rescission case. The only similarity I can see is one that appears at the highest level of generality. They're all involving bold, executive actions that affect a lot of people, but that doesn't strike me as a particularly helpful legal construct. And there isn't time to do it now, but I'd be happy to elaborate on the legal issues if there's interest during the Q&A. The same is true of the concern that upholding DACA and DACA would somehow give future presidents the legal clearance they would need in order to refuse to enforce other regulatory regimes that they were personally hostile to. Again, we're talking about apples and oranges. First of all, Obama did not refuse to enforce the immigration laws. Throughout his administration, he continued to use every penny Congress had given him for immigration enforcement. And even if DACA and DACA had both gone into effect, there still wouldn't have been nearly enough money to go after more than a small fraction of the remaining undocumented population. But second, there are all kinds of limits on presidential enforcement discretion. I'll leave them out in detail in my House Judiciary Committee testimony that Professor Blackmon was referring to. And I'll just refer you to that for those limits, because it's not enough time to discuss them. But the main one is that every statutory structure is different. In particular, every statutory structure differs with respect to the scope of discretion that the legislature has granted to the executive branch. And therefore, the fact that a particular broad exercise of discretion is recognized in one statutory context tells us very little about whether analogous authorities should be recognized in another statutory context. That's all I have to say about the legal issues. On the political front, critics have argued that these supposed inconsistencies, and I hope I've shown that they aren't really inconsistencies at all anyway, ultimately are going to be turned against us politically because they'll create or reinforce political norms that justify future president's broad claims of constitutional authority in a range of regulatory settings and that in addition, they'll create a political backlash with the public. I think those who assert those claims are making a causal assumption that they should have some obligations to actually demonstrate rather than simply assert. As for the president serving as political norms, it is true, defenders of DACA and DAPA have frequently cited the analogous actions taken by a long line of previous presidents, especially the programs of President Bush Sr. And I think those actions do provide a nice make-wait for some of Obama's decisions, but I can tell you from firsthand, having been part of the administration and integrally involved in the rollout of DACA, that the fact that President Bush had announced a similar program that other presidents had too while making nice make-ways were never a sine qua non for issuing DACA and DAPA. I think the immigrant advocacy organizations deserve the lion's share of the credit for that, and the legal authority for those programs is not the fact that other presidents have done them, it's the fact that deferred action is recognized in multiple places in the statute, explicitly in the administrative regulations that do have the force of law and in multiple court decisions as well. A related complaint is then that we liberals should be advocating for still greater border security if we want to be credible, and we haven't. But there's a reason we haven't, and I want to quote just a few statistics. The border patrol budget is now more than 14 times what it was in 1980. The ICE interior enforcement operations budget has tripled since 2004. Here's some other stuff. From 1986 to 96, this is the period from IRCA to IRA, IRA, for those who are immigration specialists or who have nothing else better to do. During that 10-year period, the number of Border Patrol agents doubled. Then, from 1996 until the 9-11 attacks, five years later, the Border Patrol doubled again. Then, in the decade following 9-11, it doubled yet again. We now spend more money on immigration enforcement than on all other federal law enforcement programs combined. And second, even with these continual exponential increases in resources for immigration enforcement, immigrant advocates overwhelmingly supported the Comprehensive Immigration Reform Bill that the Senate passed in 2013. Even though that bill would have doubled the size of the Border Patrol yet again, it would have added much more fence. It would have added drones. It would have added surveillance cameras. It would have expanded eVerify and made it mandatory nationwide. It would have adopted several other measures to enhance immigration enforcement. I can't say that liberals were wild about those provisions, but we all accepted them. We were not intransigent as the price to pay for legalization and for expansion of the criteria for legal immigration. It is true. Liberals have generally resisted calls for turning state and local police into junior immigration agencies, agents for all the reasons that Mayor Alorsa provided so eloquently. But there are good reasons for that, as he explained, and I'd be happy to talk about those in the Q&A as well. Finally, I want to be clear as to what I am not saying. I'm not suggesting that there is no pro-immigrant policy that would be capable of spawning this kind of conservative backlash. In fact, I'll concede that if you look back at history, there have been periods where large, sudden spikes in immigration, particularly from particular parts of the world, have spurred restrictive legislation. I think that cannot be denied. All I'm saying here is that there's simply no evidence that the kinds of positions that critics have recently been faulting liberals for advocating have had any effect in terms of spurring restrictive movements. I find it very difficult to believe that if only Obama had not announced DACA and DACA, well, Donald Trump would never have been elected or he would not have been able to issue the travel ban or be sent DACA. I just don't believe that. Nor do I believe that anybody in the Trump administration is actually citing DACA and DACA for the proposition that the president of the broad executive authority to issue a travel ban. As a matter of fact, I predict that public opinion will ultimately, and it might take time, reverse some of these particular policies. And so I say that we immigrant advocates should follow our own instincts rather than be guided by what our critics tell us our strategies should be. And I believe that we should continue to fight tooth and nail for immigrants and for refugees and for all the values that we believe in. Thank you very much. Thank you so much for having me. Thanks to Peter and the other organizers and the members of the Law Review for convening this conference. I am going to talk from experience of litigating two cases over the past nine months, one challenging the first Muslim ban and the second challenging the termination of DACA. And in particular, I want to talk about the role that constitutional claims play in each case, both legally and socially. And here up front I want to say this is a panel about international law and constitutional law in relation to immigration law. And I'm going to talk about constitutionalism in both legal and social terms. Because the litigation around the Muslim ban, which is now in its third iteration, and the DACA termination litigation are both ongoing, I'm going to be mostly descriptive so as not to veer into strategic considerations in the litigation. But I hope to provide at least a preliminary set of reflections on the work that constitutional claims are doing in each litigation. And my basic claim is that while these cases are important for the doctrinal issues involved, now at least of which is the scope of the executive's immigration power, they're equally important in relation to the social activism they enable for the populations most affected by each policy. Muslims on the one hand and Latinos on the other. These cases are in important ways constitutive of Muslims and Latinos in the United States, as they help to define the social and political meaning of Muslim and Latino identity. Put another way, these cases are constitutional, both legally and socially. So let me begin with a brief description of the Muslim ban litigation. I'm focusing in particular on the case in which my students in the clinic I co-teach, colleagues there and other organizations, and I were involved. When the first Muslim ban was involved, this is Muslim ban 1.0 late in the afternoon on Friday, January 27th, one week to the day after the presidential inauguration. It quickly led to chaos. The executive order was hastily drafted, inadequately vetted, and rolled out at airports across the country with only haphazard guidance to frontline customs and border protection officials. Within hours, those CBP officials were detaining and excluding people pursuant to the ban, including green card holders and dual citizens. So at approximately 10 o'clock that Friday night, my colleague Mike Wishney got a call from our alumna, Becca Heller, who runs the International Refugee Assistance Project, or IRAP. Becca reported that one of IRAP's clients, a man named Hamid Khalid Darwish, was being detained at JFK Airport in New York on the basis of the Muslim ban. Now, Mr. Darwish was an Iraqi citizen who had been granted a special immigrant visa, or SIV, by virtue of his service to the United States military in Iraq, as an interpreter, engineer, and contractor over the course of a decade. He was coming to the United States and qualified for the visa precisely because of that service and the fact that that service put his life in jeopardy if he were to remain in Iraq. When he arrived at JFK with his family, he was detained. By 11 o'clock that night, a group of faculty and students from our clinic were on the phone with lawyers from IRAP, the National Immigration Law Center and the ACLU to plot a legal strategy. Our students and colleagues worked through the night, literally through the night, and at 5.33 a.m. the next morning, that Saturday, we filed a nationwide class action habeas corpus suit on behalf of all individuals detained on the basis of the Muslim ban. Later that day, we filed a motion to stay the executive order. Shortly after 7 p.m., Judge Ann Donnelly in the U.S. District Court in Brooklyn held a Saturday night hearing to a packed courtroom of people who had been protesting at JFK Report and got messages largely through social media that they should redirect to Cadman Plaza in Brooklyn and they all descended on the courthouse on a Saturday night. And the court security, when I talked to them to say, is this a public hearing? Put me on hold and said let me check and came back and said the judge says the courthouse is open. Tell people to get here early. The courtroom was full and there were hundreds of people outside the courtroom and shortly after 8 p.m., Judge Donnelly issued a nationwide stay and joining the detention exclusion of anyone on the basis of the Muslim ban executive order. There was roughly 22 hours after we began working on the case. I often tell my students we should just quit now and become colleagues or something else because we'll never be as successful in such a short period of time as we run back. But let me talk about the complaint. The complaint, which was literally drafted overnight, included procedural due process claims that the Muslim ban unlawfully deprived individuals of the ability to apply for asylum and protections under the Convention Against Torture and a statutory claim that the ban violated the Administrative Procedure Act as well as the statutory anti-discrimination provision of the INA, which has been talked about already, section 1152A. And in three sentences in the complaint, we allege the violation of the equal protection component of the due process clause on the basis of discrimination, on the basis of national origin and animus toward Muslims. One of those sentences and one of those three sentences in the complaint, raising that equal protection claim, is complaint boilerplate. Petitioners repeat and incorporate by reference each and every allegation in the proceeding paragraphs as if sent forth herein. Which is to say that we had two sentences in the entire complaint that went to animus. One of them contained a typo. Five-thirty-three hand. Normally after from our complaint is an establishment clause claim, which became a mainstay in the many cases that followed ours in challenging the first Muslim ban and then the second Muslim ban and now the third Muslim ban, as those have come out. But for the purposes of my discussion today, what matters to me is that from the very beginning of the Muslim ban litigation, we sought to constitutionalize the substantive rights at stake. Whether in terms of equal protection, as we alleged, albeit in bare form, thank you for notice pleading, or establishing clause protections as later litigants alleged, the basic claim was that the Constitution protects against animus on the basis of religion. There were, as was discussed in the previous panel, multiple factual rounds for the claim of animus. Statements by candidate Trump, President Trump, the text and structure of the executive orders themselves. But importantly for the purposes of my argument, and as I alluded to with regard to the courtroom protests and the airport protests, the Muslim ban litigation was accompanied from the very beginning by large-scale visible social protest. I'll note here also that the airport protests began a week after the women's march in Washington and the women's marches across the country. I think that is not coincidental, that there was so much energy that was available in that first week of the administration. These rallies were principally carried out by allies of Muslims and refugees, rather than Muslims and refugees themselves, but as I'll return to toward the end of my comments, they were important to an ongoing process of identity claiming by Muslims and by refugees. All right, let me turn and very briefly discuss the second of the two litigations that my clinic and I have been involved in, and this concerns the termination of DACA. So DACA was terminated by memo from the administration issued on September 5th, and it stopped any new applications from coming in as of September 5th. It limited renewals of DACA for approximately 150,000 people, and then terminated any future renewals going forward. As it happens, we had sued the Obama administration over provision of the DACA expansion before the election, and had a case that was pending in, as it turned out, the same courthouse in Brooklyn prior to the election. After the election and after the DACA was terminated, we amended that suit, a case called Batayavi Dal, and brought claims that the termination of DACA by the administration was unlawful. Those claims were for violations of the Administrative Procedure Act, the Regulatory Flexibility Act, which I had never heard of before we decided to include in our complaint, procedural due process, and equal protection. This represents a mix of procedural and substantive claims. The procedural claims involved how DACA was terminated, whether notice and comment was required, whether there was sufficient analysis of the impact of the termination on small businesses and nonprofits. That was a Regulatory Flexibility Act claim. The substantive claims are first and foremost that the government action was arbitrary and capricious, and second that the termination of DACA was motivated by racial animus toward Latinos and toward Mexicans in particular. Now, ours was the first case brought to challenge the termination of DACA, but there are now at least a half dozen, I think slightly more than that, cases across the country which have been brought to terminate DACA, all of which are bringing substantially the same causes of action as we did, including the animus-based equal protection claim. To date, however, is the Administrative Procedure Act claims, not the constitutional claims, that have garnered the court's attention, particularly Judge Alsup's Court in Northern California and Judge Garifus's Court in the Eastern District of New York where we are. And in both of those courts in California and in New York, the parties are engaged currently in fairly pitched battles over what counts as the administrative record, whether the government is required to produce a privilege log of documents that are not in the administrative record and what discovery, if any, the parties can take in relation to the Administrative Procedure Act claim. But I want to suggest that people and movements are not animated by the Administrative Procedure Act, much less by the Regulatory Flexibility Act. Put another way, these technocratic statutes that govern the operation of the administrative state do not typically resonate with the lived experience of people. And so if you talk to dreamers, if you talk to United We Dream, the largest organization of dreamers in the country and one of our clinic's clients, if you talk to dreamers across the country, it's a sense of racial targeting that most deeply resonates and not a sense of procedural irregularity in the way that the program was terminated. Know then that there's an important difference between the Muslim ban litigation and the DACA litigation. In the Muslim ban litigation, there was significant congruence between the animus-based legal claims that were both made of traction in the courtroom and the lived experience of targeting of affected communities. In contrast, in the DACA litigation, there is, at least to date, a significant incongruity between the claims gaining traction in court and those that resonate with the affected population. This may well change as the litigation unfolds. We have been in it for all of a month and a week. But at least up until now, the Equal Protection Claims are more prominently outside of the courtroom than in when it comes to DACA. All right, so let me end with a few reflections about constitutional claims and the Constitution of Identity. Robert Cover described law as, quote, a resource in signification that enables us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify, end of quote. Which kind of work the law does, whether it rejoices or struggles or disgraces, humiliates, or dignifies, depends upon the narratives that are constructed with and around the law. Narrative context fixes the meaning of law, legal institutions, doctrine, and legal practice, because it's fundamentally and inextricably embedded in narrative. Cover wrote further, and here I'm quoting again, no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution, there is an epic. For every decalogue, a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. So I want to, in closing, ask, borrowing from cover, what is our epic? What is the world, the law-inflected world in which we live today? And I want to suggest that this is an epic of national redefinition. It's a maxim of international law. The sovereignty includes a power. In fact, a base is the power to decide whom to admit and whom to exclude. But just as it was a mistake to consider the Chinese Exclusion Act, distinct from the social context of anti-Chinese and anti-Asian animists in the country at that time, as was discussed in the prior presentation, it's a mistake to consider the Muslim ban in isolation from the larger politics of the current moment or to consider the DACA termination in isolation from those larger politics. When viewed in the context of racially hostile comments of the president, anti-immigrant policies by the administration, and a hostility toward protest against police brutality toward African Americans, it becomes clear that the Muslim ban is part of a larger project of national reconstitution, just as is the termination of DACA. And this same context supports an argument that the termination of DACA is the policy enactment of a racially expressed nativism. And so when Donald Trump says we're not a country if we can't control our borders, he's not merely paraphrasing a maxim of international law. Rather, he's deploying sovereignty in this political moment and as directed to his audience as a code word. And so I want to suggest that we are in this moment of national contest over national identity. And this is in both legal and social dimensions a constitutional contest. It's in this context that the Muslim ban and the DACA litigation must be understood. Now to put to a final point on it, but the deployment of racial and religious animus is consistent with an ethno-nationalist re-imagination of the country who are reconstituting or reconstitutionalizing of the nation. This dovetails with Peter Margulies' point in the last panel that the Muslim ban effectively curtailes legal immigration of particular kinds of immigrants. The number of immigrants goes down and the type of immigrant changes. And so too does the constitution of the country. And this is why the constitutional claims in these litigations matter. These cases are about basic questions of membership and not merely procedural irregularities in the announcement policy. And these claims matter as much outside the court as inside for the reasons that cover sites. Law is a resource in social practice. And this may be especially true of constitutional law. Just as a rich and thick set of social practices changed our understandings of gay rights such that we could travel, we could travel the constitutional distance from Bowers v. Hardwick in 1986 to Lawrence v. Texas in 2004. So too may our constitutional understandings of belonging of Muslims and Latinos change with rich and thick social practice. To put this in slightly different terms and I'll end here, activists can be constitutionalists. Take for example dreamers. Dreamers have been engaged in their own radical constitutionalism for the better part of a decade. They have been claiming that they are American even before the law has granted informal recognition. That's a radical act. It's an act of anticipating the law and willing the law through activism rather than waiting for conferral of it whether from Congress or from the courts. And in doing so, the dreamers like the airport protesters following the first Muslim ban make demands as to what the law must be and they enact what the law must be. These social practices then help to constitute the law and these social actors and not merely the lawyers may be the constitutionalists that matter most. Thank you. While we're getting started let me also thank the students, the faculty, the administration and soon the IT staff for all their work in putting together the presentations today and for including me and I'd like to especially thank my co-panelists for such insightful and eloquent remarks. My focus today is going to be on borders, bans and migrants in Europe. There we go. And in particular I'd like to draw your attention to a recent case decided by the European Union Court of Justice. On September 6th, 2017 the day after Attorney General Jeff Sessions announced the termination of DACA the European Court of Justice issued a judgment in an important case in which a member state at the frontier think Texas sued the central government you know what that is for acting unlawfully and applying temporary measures to protect vulnerable immigrants. This case, which got all the way to the highest court of the European Union began at the borders of Europe and that's where I'd like to start. On the screen you see in dark blue the 28 nations of the European Union. The European Union has an asylum law which has a venue statute known in the European vocabulary as the Dublin Regulation. What this venue statute says in short is that in most instances undocumented migrants have to apply for asylum in the first country in the EU in which they set foot. As you look at the map you can imagine that the first country in which they set foot is likely to be a country on the eastern frontier of the European Union or to some extent if they come by boat and step out of the boat on the southern frontier. Greece, Italy, Hungary, Slovakia, Romania. Not only does this mean that the number of asylum seekers and the place of their asylum adjudication is apportioned in a very uneven setting but in a very unfair setting this map shows you the wealth of the European countries. Darker is richer. So any asylum seekers that pass through the frontier countries into the interior the further north, the further west they go are sent back pursuant to the Dublin Regulation to the poorer countries with less capacity at the border. As you can imagine this creates significant problems. One last map to show you on this. This shows you in the light green the Schengen zone. Schengen is an agreement of 26 countries. Not all EU countries and not all EU countries are part of it. You can see the UK and Ireland up there are have brought themselves outside Schengen but if you're a country in the Schengen zone in the Schengen agreement you'll agree that there will be no internal border controls. So anybody who lands in your country and goes through border controls for the first time has free movement totally within this 26 countries zone. Now all of these borders and geographic areas and areas of movement have had great pressure in recent years in terms of the increasing numbers of asylum seekers in the European Union. And this graph shows you look at the dark blue line that's the number of first time asylum applicants. Just gives you a sense of how quickly and how dramatically the numbers of asylum seekers have increased in the EU in recent years. So roughly 2009 200,000 asylum seekers in all 28 countries in the EU. In 2013 we were up to 400,000 214,000 arose to 625,000 and then 2015 the year that broke the bank over 1.2 million asylum seekers filed applications for asylum. And you can see that in the next year 2016, and this surprised me I think it might surprise you too another 1.2 million first time asylum applications were filed in the EU. So the system was staggering under sudden large, large increases of numbers. And it's not just numbers as Mayor Alorza told us this morning it's people walking with very few possessions and with their children. This is a picture of Syrian asylum seekers walking from Greece through the fields of Hungary in the summer of 2015. And what happened? Hungary built a fence. Here you can see on the southern border of Hungary between Hungary and Serbia the first efforts to put up physical barriers in the summer of 2015 to prevent asylum seekers from accessing the EU. And it wasn't just Hungary. The fences were being built that same summer. And those fences didn't stop enough people. All they started slowing it down and as people this is a picture in Budapest again from 2015 marching towards the European Union and in particular towards Austria and Germany what happened in the Schengen Agreement with the black lines many of the Schengen countries at least five important ones Austria, Germany and Sweden the ones I want to emphasize reimposed border controls. So what we saw in a very short time and what we continue to see is an erection of borders in an effort to stop asylum seekers from to place their claims in the European Union. This created a lot of backlash and a lot of social consternation. The Prime Minister of Hungary Viktor Orban infamously said we are guarding the gates of Christian Europe in Poland people were marching saying today refugees tomorrow terrorists are free of Islam in Slovakia the Interior Minister in August 2015 said Slovakia is a Christian country and we can help Christians from Syria find a new home and most of these asylum seekers in the summer of 2015 large, large, large majority were from Syria and had come through Turkey and had been displaced by war and persecution. So this was a very terrible, tenuous, tumultuous time in the European Union and the European Union Council members of each of the 28 governments spent many hours trying to come up with plans to respond both publicly and politically to these crises in September of 2015 I'm going to cut to the chase here they passed a plan which they hoped would relieve some of the pressure on the border states that I mentioned before and in particular looking where the migrant flows were coming in July and August of 2015 they said that there would be a relocation from Hungary of 54,000 asylum seekers who would be moved to other countries in the EU who had fewer asylum seekers and would have their cases adjudicated there and if they got asylum would be integrated there 50,000 from Greece which was reeling with large, large numbers of asylum seekers 15,000 from Italy because at this particular moment fewer people were coming to Italy now what the EU council said is that we need to do this this is a European wide crisis we need to act together we need to have solidarity we need to share the responsibility to act and so this relocation of 120,000 asylum seekers is going to take place according to a certain formula each country depending upon its population its GDP its employment rate would get a certain portion of these people the EU would give 6,000 euros per asylum seeker who was relocated and those who would be eligible for relocation were those asylum seekers who came from groups of which the prior quarters approval rate for asylum had been more than 75% so they were relocating people and it was a pretty good bet that many of them had valid claims Hungary demerred said take your 54,000 we don't want your stinking 54,000 leave us out of this we don't want to be part of it and in fact we are going to oppose in ban any refugees from coming to Hungary at all the council proceeded it passed a vote of 23 to 5 I think Hungary, Slovakia, Czech Republic and Romania were objecting passed this relocation plan and started the process Slovakia and Hungary as you can see from this slide went to court they sued the EU council and for those of you who have been following the DACA litigation in particular the claims will sound very familiar as will the format of the litigation oops, sorry I went the wrong way Poland intervened on the side of Slovakia and Hungary seven other EU states and the EU commission intervened on the side of the council there were oral arguments briefing the big claim was the EU council is trying to legislate it's stealth legislation in disguise using executive power saying they're protecting temporarily asylum seekers they are in fact arrogating to themselves power they don't have there were also similar to our situation in the United States notice and comment kind of claims they didn't give the right kind of notice to the member state parliaments and didn't allow comment from each of the member state parliaments about their plan and the two substantive arguments were this is disproportional it's too intrusive on the sovereignty and the economies of the states that would receive relocated asylum seekers and the council didn't use the least restrictive means the European Court of Justice last month resoundingly rejected every one of the claims it was a 15 member panel of a grand chamber of the European Court of Justice and they affirmed the power and the the propriety of the council saying that EU institutions must be allowed broad discretion when adopting measures that entail choices particularly those of a particular nature that involve complex assessments they ordered Slovakia and Hungary to pay the costs of the EU council and to comply with the order now what's happened in the intervening five weeks it is early to say what's really happened but you probably won't be surprised to know that the Prime Minister of Hungary said this is a political decision it's an illegitimate court used the language of sexual violence to say the EU is raping Hungary and then said you know this fence that Hungary put up helped all of the EU because it's keeping out those asylum seekers and terrorists and presented a bill for 400 million euros to the EU now he is not the only person in Hungary or in the EU or in the Visigrad countries there are many people rallying in Hungary and elsewhere in favor not only of the court judgment but of the initial EU council decisions to help with the refugee relocation that was ordered Slovakia I must say has relented, has pledged to work with the EU council so I think we're seeing some movement I think it's soon and I can't give you a definitive answer of what's going to happen but we certainly see resonances across the Atlantic to what we're seeing in the United States and I have to conclude with a somewhat pessimistic note the fence is still there this is the Hungary-Serbia border and as in this picture I think the future is cloudy thank you let me add my voice to the chorus of praise for those who have organized the conference and my thanks for including me in this when Peter invited me the question arose as to what I should talk about I had just published a book which has a chapter on immigration policy and that was what I thought I would talk about but I also told him that I had just completed a draft with my colleague my writing colleague Roger Smith professor at the University of Pennsylvania of a book that we had published in 1985 concerning birthright citizenship in light of the new circumstances that have arisen that make that a hotter issue even than it was in 1985 and he urged me to talk about that so that's the occasion for my discussion of birthright citizenship so this book that I mentioned earlier it's single most important claim certainly it's most novel and controversial one was that birthright citizenship for the U.S. born children of undocumented aliens is not constitutionally mandated as previously universally almost universally agreed but instead remains a matter of policy choice for congress that was greeted with some chill by immigration scholars and although we had certainly not in the book favored any favored legislation of birthright citizenship we argued that congress has the political authority the constitutional authority to do that and we considered the arguments pro and con in the almost 35 years since we wrote it some elements of the decision environment in which congress would if it chose under our interpretation consider this policy have changed if not what has changed and decidedly so is the political and policy environment and that's why this is relevant to today's conference with regard to the Trump administration's plans for our immigration policy we argued that six conditions have changed somewhat since we wrote the book first president Trump's public statements about birthright citizenship for this group that is the U.S. born children of undocumented immigrants the size of the group in question the pros and cons of the current practice public attitudes on the issue other liberal democracies practices and possible reforms short of current birthright citizenship regime so I'm going to very quickly mention those those six developments just sort of update our understanding of what the policy environment is in a policy paper released on August 15, 2015 candidate Trump stated that birthright citizenship is the biggest magnet for illegal immigration which is preposterous but so or most of the things he says in fact I want to at this point I want to make a plug for a limerick that I wrote a 22 stanza limerick about Trump published on July 5 in Huffington Post called Trump's America and I'm happy to send it to you if you can 10 days later in a heated exchange with Univision anchor Jorge Ramos while on the campaign trail in Iowa Trump questioned whether the 14th amendment provides birthright citizenship to the children of undocumented persons quote a woman is getting ready to have a baby she crosses the border for one day has the baby all of a sudden for the next 80 years hopefully longer but for the next 80 years we have to take care of the children of undocumented persons and we have to take care of the children of undocumented people no no no I don't think so excuse me some of the greatest legal scholars and I know some of these television scholars referring to Ramos agree with you but some of the great legal scholars agree that that's not true these are great legal scholars the top that say that's a larger vocabulary than President Trump and I'm thinking of writing another Limerick about what would happen if as Trump proposed he and Tillerson were to take an IQ test administered perhaps by MENSA so if you have any ideas for that Limerick let me know Trump advanced no specific proposal for how he would change the birthright citizenship rule he said literally literally nothing about it and just a week ago when he released his immigration reform proposals he said nothing about birthright citizenship which is very striking whether that he will maintain that silence in the future is a question so the second is the size of U.S. born children of undocumented parents and I discuss in this update the or we discuss the dimensions of the population and I'll just give you a couple of data points because nobody's really sure what the size is for obvious reasons the share of U.S. born children of unauthorized immigrants has been increasing over the past two decades this likely is related to the fact that the long term residents constitute a rising share of unauthorized immigrants it's a very important and little understood phenomenon in 2014 two thirds of adult unauthorized immigrants had lived in the U.S. for a decade or more compared with 41% in 2005 now it's well known and important fact that mixed status families are very very common in the United States but the the residential patterns and the duration of those patterns I think is an important new ingredient in the policy mix a third development that has served since our book appeared the heightened nationalists and anti-immigrant views exhibited by voters in most of the world's liberal democracies Canada so far is the exception this populist resistance to even legal immigration makes birthright citizenship for the children of undocumented immigrants even more politically anomalous and unpopular than ever before now it's to public attitudes the most recent survey on the question conducted by NBC news and the Wall Street Journal and published in just a few weeks ago found that 53% of respondents thought that we should continue to grant citizenship to all children born in the United States 42% opined that this should be changed so that children of illegal immigrants are not automatically granted citizenship now it's important to note that these questions are asked often about whether the Constitution should be changed and that public is generally against constitutional change for anything so neither of these surveys asked respondents whether assuming that the Constitution does allow Congress to legislate on the matter as our book had argued Congress should adopt a different policy by statute so presumably the respondents were not considering that possibility and of course it did not ask whether Congress should adopt an intermediate position which I have proposed modifying the birthright citizenship rule as far as other countries practices are concerned the US is distinctive and in some cases unique among nations in many ways relevant to citizenship policy our comparatively open legal immigration policies before the 1920s and since 1965 our remarkable tradition of ethno-racial and religious diversity is a large and growing illegal immigrant population which partly reflects our very long land border with a vastly poorer region our comparatively easy non-culturally based naturalization requirements our commitment to legal equality and finally our constitutionally based commitment to birthright citizenship given these differences it is unsurprising that the citizenship rules of other liberal democracies differ from those of the US in some important respects including birthright citizenship just on Guiness citizenship based on the citizenship of one's parents rather than on where the one is born it's called Jerusalem is far more common than birthright citizenship which emerged from a very unique English common law tradition no European country accords citizenship based simply on birth in its territory indeed a number of countries with traditionally unqualified Jusseli rules that is citizenship attributed simply by reason of birth in the territory have recently abolished or adopted limits on Jusseli conditioning the child's birthright citizenship on the parents birth in the country or legal residence status the parents this is true of Australia and New Zealand and also the UK so it's important to understand that there are many liberal democracies that have not adopted our particular rule as it's been traditionally understood so I think the notion that liberal democracies all would subscribe to our current regime is simply false now it may be that that's in a relevant consideration but one ought to understand that as part of the context in general a global trend has developed in which traditionally Jusseli countries the UK and Ireland for example either restrict birthright citizenship to the legal residency status of at least one parent or appeal its Jusseli provisions altogether again the notable exception to this is Canada which like the US does not require that a parent of the Canadian born or Canada born child have legal status this feature of Canada's rule like ours is controversial and seems likely to become more so as illegal immigration to Canada increases in another trend some traditionally Jusseli countries have added Jusseli elements to their citizenship laws but usually if not always conditioned on the parent's own birth or residency status so we really are an outlier in this respect with the important exception of Canada which again does not have the does not face the large scale undocumented migration that the United States does I'm going to conclude with a possible intermediate position which I have proposed for those who are who believe that Congress does as we show I think clearly and relying on the constitutional and historical materials that Congress does have the power to change the current understanding of the birthright citizenship rule that there is another approach to this which is not either eliminating birthright citizenship for all children born in the United States of undocumented parents or maintaining the status quo as we noted in the book the existing role of unrestricted birthright citizenship for immigrant parents and so-called and these terms are very derogatory but they're used constantly so I'm going to use them for our purposes today so-called birth tourists or anchor babies has a number of advantages even though it flagrantly violates the consent principle at the heart of Democratic government a consent principle that we argue with the conception of the citizenship clause in the 14th amendment the existing rule has a number of advantages even though it flagrantly violates the consent principle at the heart of Democratic government as well as creating perverse incentives for illegal entrance and overstays change in the birthright citizenship rule our book argued can be done by congressional statute I proposed a reform that promises to achieve a better combination of advantages and disadvantages again if one wants to alter the status quo for this target group it would substitute retroactive to birth citizenship for the U.S. born children of illegal immigrant parents and demonstrate a substantial attachment to and familiarity with this country by satisfying two conditions first a certain period of residence here after birth and a certain level of education in our schools in almost every case of course the two conditions will overlap and the schooling will assure at least a minimal level of proficiency in English and knowledge of American society reasonable people can differ about what the qualifying periods of residence and education should be whether those periods must be continuous considerations in my view completion of eighth grade should suffice for this limited period and certifying these facts of the government should be administratively simple during the interim period the individual should have the legal status of presumptive citizen with all the attributes of citizenship for individuals of their age the parent status would remain the same as under current law now I haven't addressed here the issue of legalization which I do discuss in the chapter of my book that Peter advised me to not to present in favor of this one can easily easily imagine objections to this reform especially by those who categorically reject birthright citizenship for this group on grounds that we've already discussed but two answers to such objections are obvious and in our view compelling first whether Americans like it or not these children are now legally exemptions at birth second the normative objections to their citizenship that their connections to our country is imposed without our consent and is often admonitious transient and insubstantial would be met by the proposed reform whose enactment would provide the requisite consent to and conditions for their citizenship thank you so does anybody have any questions for Peter? everyone's anxious to launch so I don't want to contain us unduly but quick question this is for Mary Ellen but I'm happy to have responses from everyone Peter and everyone else Mary Ellen I had sort of a mixed view about your presentation because on one hand it was optimistic about the court of justice of the European Union but you ended up saying I think rightly that the outlook is somewhat cloudy to me that latter more pessimistic outlook is reinforced by the results of the German election where Angela Merkel was re-elected but she's still trying to put together a coalition and this is in a German parliament where you also have a far right party that has gotten unprecedented levels of public support and that party has its main plankton's platform anti-immigration so is that a cautionary tale for the US does that mean therefore that what Steve was saying before about how Obama's pro-immigration measures had nothing to do with the election Trump maybe that was a little overstated and at least in terms of looking at this as a matter of multiple causation as everything is in the world pro-immigration policies do have a backlash here as well well let me say I will address it very superficially and simply given that we all want to go to lunch very quickly and I want to go back to Matthew the first speaker today the invasion of foreigners is always with us it's with us in Europe it's with us in the United States and I don't think this is anything new and I do think similar concerns about foreigners or about culture being changed and seeing those fears in the United States we're seeing them in Germany we're seeing them in France but I do want to point out that France did not elect Le Pen so it's a very mixed bag I have a lot to say about the 200,000 limit on refugees that Angela Merkel has said that she would be a condition for joining with other coalition parties but that's too much for now I can kind of expand on my ideas there but I do think Peter since I have the floor for just a moment it is more than immigration the EU has been struggling with how to form a supranational entity and even before the immigration crisis flared and I think it's all shaking down I think the court opinion I talked about is going to be important far beyond the immigration context or the refugee context and so I think when I was saying it's too soon to tell and it's somewhat uncertain I think that's all part of the mix thank you