Introduction
The social justice concerns of the past few years have caused many to reexamine how structural institutions impact equity in the 21st Century. The U.S. Constitution is the core of the U.S. democracy, yet it was written when the majority of people living in the U.S. were excluded from its founding principles. Does guaranteeing “life, liberty, and the pursuit of happiness” for those who feel oppressed under the current U.S. Constitution depend on how the Supreme Court of the United States (SCOTUS) interprets the law? Right now, SCOTUS bends to the conservative side with 6 out of 3 justices nominated by conservative presidents (3 from former President Trump). Political ideology and theory of constitutional interpretation directly impact how each Supreme Court justice interprets the law and rules on cases.
Discussion Overview
In 2019, former President Trump implemented a Migrant Protection Protocols (Remain in Mexico) program, which allowed the U.S. to send immigrants to Mexico to await judicial decisions on asylum claims. Supporters tout the program’s effectiveness in limiting immigration to the U.S. and easing the burden to border states. Critics claim that the program was an extension of “catch and release” policies and caused a humanitarian crisis by requiring asylum seekers to remain in unsafe conditions.
The Biden Administration ended the program claiming that it caused a “diplomatic and humanitarian crisis” and was challenged in court (Biden v. Texas). The Biden Administration asked SCOTUS to temporarily halt the program to litigate the issue. On August 24, 2021, SCOTUS reinstated the Migrant Protection Protocols program stating that the Biden Administration failed to prove that the decision to end the program was not “arbitrary and capricious”.
Questions:
Do you see the U.S. Constitution as a document that should be interpreted as the founders created it in 1787 (originalist theory) or as a living document that should be interpreted to reflect the changes in America? What would that mean for historically excluded groups (HEG’s) or those originally left out of the Constitution? What impact would an originalist theory have on women, people of color, the LGBTQ+ community, and other HEG’s?
Within the system of separation of powers, provide 1 recourse the current liberal-leaning executive and legislative branches have to counteract the potential political overreach of SCOTUS’s decision not to halt the Migrant Protection Protocols program? Explain how checks and balance would work if a liberal-leaning president refused to execute the orders of a conservative-leaning SCOTUS. What would be the political, social, and democratic implications?
Did this SCOTUS ruling open the door for the U.S. to detain immigrants permanently? What rights and protections do asylum seekers have under the U.S. Constitution while awaiting immigration status? Has the Migrant Protection Protocols caused a “diplomatic and humanitarian crisis”? Did the Biden Administration violate the federal law by ending the Migrant Protection Protocols due to an “arbitrary and capricious” nature? Was it purely politically motivated?
Required Reading
American Immigration Council. (2021, August 2). Rising Border Encounters in 2021: An Overview and Analysis. https://www.americanimmigrationcouncil.org/rising-border-encounters-in-2021
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Howe, A. (2021, August 24). Court won’t block order requiring reinstatement of “remain in Mexico” policy. SCOTUSblog. https://www.scotusblog.com/2021/08/court-wont-block-order-requiring-reinstatement-of-remain-in-mexico-policy/
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Jones, J. (2021, July 23). Americans Remain Divided on Preferred Immigration Levels. Gallup. https://news.gallup.com/poll/352664/americans-remain-divided-preferred-immigration-levels.aspx
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NBC News Now. (2020, March 3). Asylum Seekers Impacted By ‘Remain In Mexico’ Policy. NBC News.
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Office of the Texas Governor. (2021, August 25). Governor Abbott Statement On Supreme Court Decision To Reinstate ‘Remain In Mexico’ Policy. https://gov.texas.gov/news/post/governor-abbott-statement-on-supreme-court-decision-to-reinstate-remain-in-mexico-policy
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Suggested Reading
Albert, R. (2020, June 30). Time to update the language of the Constitution. The Hill. https://thehill.com/opinion/white-house/505071-time-to-update-the-language-of-the-constitution?amp
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Azerrad, D. (2015, December 28). What the Constitution Really Says About Race and Slavery. The Heritage Foundation. https://www.heritage.org/the-constitution/commentary/what-the-constitution-really-says-about-race-and-slavery
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McLaughlin, D. (2020, October 16). Silly Attacks on Amy Coney Barrett and Constitutional Originalism. The National Review. https://www.google.com/amp/s/www.nationalreview.com/2020/10/silly-attacks-on-amy-coney-barrett-and-constitutional-originalism/amp/
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(This article is free, however, the website limits the number of times you can view it.)
Millhiser, I. (2021, August 24). The Supreme Court’s stunning, radical immigration decision, explained. Vox. https://www.vox.com/2021/8/24/22640424/supreme-court-remain-in-mexico-trump-biden-samuel-alito-immigration
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Oyez. (n.d.). Department of Homeland Security v. Regents of the University of California. https://www.oyez.org/cases/2019/18-587
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Romo, V. (2020, June 26). Judge Orders ICE To Free Detained Immigrant Children Because Of COVID-19. NPR. https://www.npr.org/sections/coronavirus-live-updates/2020/06/26/884186168/judge-orders-ice-to-free-detained-immigrant-children-because-of-covid-19
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Solum, L. (2019). Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate. Scholarly Commons. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1376&context=nulr
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University of Missouri-Kansas City School of Law. (n.d.). Theories of Constitutional Interpretation. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
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Women’s Refugee Commission. (2021, August 25). Women’s Refugee Commission Outraged by Supreme Court Decision to Allow Restart of ‘Remain in Mexico’. https://www.womensrefugeecommission.org/press-releases/womens-refugee-commission-outraged-by-supreme-court-decision-to-allow-restart-of-remain-in-mexico/
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