Deconstructing Invisible Walls: Sotomayor's Dissents in an Era of Immigration Exceptionalism

William & Mary Journal of Race, Gender, and Social Justice William & Mary Journal of Race, Gender, and Social Justice

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27 (2020-2021)

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Justice Across Borders: Social Justice

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Deconstructing Invisible Walls: Sotomayor's Dissents in an Era of Deconstructing Invisible Walls: Sotomayor's Dissents in an Era of

Immigration Exceptionalism Immigration Exceptionalism

Karla McKanders

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DECONSTRUCTING INVISIBLE WALLS: SOTOMAYOR’S

DISSENTS IN AN ERA OF IMMIGRATION EXCEPTIONALISM

KARLA MCKANDERS

Our Constitution demands, and our country de-

serves, a Judiciary willing to hold the coordinate

branches to account when they defy our most sacred

legal commitments. Because the Court’s decision

today has failed in that respect, with profound re-

gret, I dissent.

—Justice Sonia Sotomayor

I. SUBJECTING THE PLENARY POWERS DOCTRINE TO STRINGENT

STANDARD OF REVIEW

A. Travel Ban Case: Trump v. Hawaii

B. Ending Immigration Exceptionalism Through Exhaustive

Review of Executive Actions

II. E

XECUTIVE ACTIONS RECONSTRUCTING OUR BORDERS MUST

ADHERE TO THE RULE OF LAW

A. Department of Homeland Security v. Board of Regents of

the University of California

B. Wolf v. Cook County

C. Barr v. East Bay Sanctuary Covenant

ONCLUSION

Since 2017, the U.S. Supreme Court has granted certiorari and

considered twenty immigration cases.

In 2019, the Supreme Court

* Clinical Professor of Law, Vanderbilt University Law School. Thanks to Vanderbilt

University, School of Law students Cloe Anderson and Joshua Minton for excellent

research assistance. Thanks also to Professors Ragini Shah and Yolanda Vazquez for

their insightful feedback.

1. Trump v. Hawaii, 138 S. Ct. 2392, 2448 (2018).

2. See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020); Dep’t of

Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020); Nasrallah v. Barr,

140 S. Ct. 1683 (2020); United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020); Barton

v. Barr, 140 S. Ct. 1442 (2020); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020); Kansas

v. Garcia, 140 S. Ct. 791 (2020); Hernandez v. Mesa, 140 S. Ct. 735 (2020); Wolf v. Cook

Cnty., 140 S. Ct. 681 (2020); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019);

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 139 S. Ct. 2779 (2019) (mem.);

Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019); Nielsen v. Preap, 139 S. Ct. 954 (2019);

Pereira v. Sessions, 138 S. Ct. 2105 (2018); Sessions v. Dimaya, 138 S. Ct. 1204 (2018);

Jennings v. Rodriguez, 138 S. Ct. 830 (2018); In re United States, 138 S. Ct. 443 (2017);

Trump v. Hawaii, 138 S. Ct. 377 (2017) (mem.); Trump v. Int’l Refugee Assistance Project,

138 S. Ct. 353 (2017) (mem.); Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080

(2017); Lee v. United States, 137 S. Ct. 1958 (2017); Maslenjak v. United States, 137 S.

96 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

issued eight decisions focusing on immigration.

There are many

different theories accounting for the proliferation of immigration cases

on the Supreme Court’s docket. Some immigration scholars attrib-

ute the proliferation to the decline of the plenary powers doctrine,

while others attribute the increase in the executive branch’s unilat-

eral actions restricting immigration in the United States.

With the proliferation of immigration cases before the Supreme

Court, Justice Sonia Sotomayor has emerged as a strong voice of

dissent.

Over the past few terms, Sotomayor has written more dis-

sents than any other Justice.

The Article examines the impact her

Ct. 1918 (2017); Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017); Esquivel-Quintana

v. Sessions, 137 S. Ct. 1562 (2017).

3. See Thuraissigiam, 140 S. Ct. at 1961 (discussing the constitutionality of

expedited removal of noncitizens); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. at 1891 (holding that the Department of Homeland Security’s decision to

rescind the DACA policy was arbitrary and capricious, in violation of the Administrative

Procedure Act); Nasrallah, 140 S. Ct. at 1683 (citing 8 U.S.C. § 1252(a)(2)(C)–(D) do not

preclude judicial review of a noncitizen’s factual challenges to an order denying relief

under the Convention Against Torture); Sineneng-Smith, 140 S. Ct. at 1575 (holding

principle of party presentation violated when the Ninth Circuit found First Amendment

overbreadth for statute prohibiting the inducement of immigration law violations);

Barton, 140 S. Ct. at 1442 (determining eligibility for cancellation of removal of a lawful

permanent resident who commits a crime, an offense listed in 8 U.S.C. § 1182(a)(2) com-

mitted during the initial seven years of residence need not be one of the offenses of

removal); Guerrero-Lasprilla, 140 S. Ct. at 1062 (finding that “questions of law” in the

Immigration and Nationality Act’s 8 U.S.C. § 1252(a)(2)(D), include the application of a

legal standard to undisputed or established facts); Garcia, 140 S. Ct. at 791 (holding

federal immigration law did not preempt the Kansas identity fraud statutes); Hernandez,

140 S. Ct. at 735 (holding there is no private right of action for the family of a young

Mexican national who was killed by a United States border officer).

4. Kevin R. Johnson, Immigration in the Supreme Court, 2009–13: A New Era of

Immigration Law Unexceptionalism, 68 O

KLA.L.REV. 57, 59 (2015).

5. Michele Waslin, The Use of Executive Orders and Proclamations to Create

Immigration Policy: Trump in Historical Perspective, 8 J.

ON MIGRATION &HUM.SEC. 54,

54 (2020) (“Donald Trump’s overall volume of EOs has been remarkably similar to that

of other presidents, while his number of proclamations has been relatively high. His

immigration-related EOs and proclamations, however, diverge from those of his pre-

decessors in several ways. Of the 56 immigration-related EOs and 64 proclamations

issued since 1945, Trump has issued [ten] and nine, respectively. Overall, about [one]

percent of all EOs and proclamations during this period have been immigration related,

compared to [eight] percent of Trump’s EOs and 2.4 percent of Trump’s proclamations.”).

6. Kevin R. Johnson, Immigration Decisions in the 2019 Supreme Court Term,

Upcoming Cases in the 2020 Term, UC

AVIS SCH. OF L. FAC.BLOG (June 25, 2020),

https://facultyblog.law.ucdavis.edu/post/immigration-decisions-in-the-supreme-court

-2019-term-upcoming-cases-in-the-2020-term.aspx [http://perma.cc/SL6Q-ZLG3]; see also

Ali Shan Ali Bhai, A Border Deferred: Structural Safeguards against Judicial Deference

in Immigration National Security Cases, 69 D

UKE L.J. 1149, 1166–67 (2020).

7. Adam Feldman, Empirical SCOTUS: Amid Record-Breaking Consensus, the

Justices’ Divisions Still Run Deep, SCOTUS

LOG (Feb. 25, 2019, 1:28 PM), https://www

.scotusblog.com/2019/02/empirical-scotus-amid-record-breaking-consensus-the-justices

-divisions-still-run-deep [http://perma.cc/XPC3-PU3C] (noting that during the 2019 term,

Justice Sotomayor was the Supreme Court’s most frequent dissenter in opinions and in

the Supreme Court’s shadow docket).

2020] DECONSTRUCTING INVISIBLE WALLS 97

dissents have on the theme of this symposium, Justice Along Bor-

ders. This Article focuses on how Justice Sotomayor’s recent im-

migration dissents force us to grapple with how the long-standing

plenary powers doctrine has privileged borders over our most sacred

legal commitments—fundamental rights under the constitution and

adherence to rule of law. This Article argues that Justice Sotomayor’s

immigration decisions provide a significant break in historical defer-

ence to executive actions and are forcing us to reconceptualize the

ways in which the immigration system historically has abrogated

the rights of immigrants of color.

In 2017, President Trump began an unprecedented upheaval of

the U.S. immigration system through executive orders, proclamations,

proposed regulations,

and the referral of immigration cases to the At-

torney General.

In many instances, the Administration has outrightly

stated that it would not follow existing immigration, constitutional,

or other laws to reach its goal of overhauling the immigration sys-

tem.

This significant policy shift has resulted in multiple lawsuits

and injunctions halting executive actions.

It has resulted in the

U.S. Solicitor General’s multiple unprecedented petitions to the Su-

preme Court to intervene and bypass existing court rules and proce-

dures.

In many of the immigration cases, the Supreme Court is

balancing whether to defer to executive actions when immigration,

national security, and sovereignty are implicated against the xeno-

phobic and racist statements that implicate constitutional rights.

During Justice Sotomayor’s eleven-year tenure on the bench,

she has become known as the Justice who consistently challenges

decisions that impact “minorities, immigrants, criminal defendants

and death row inmates.”

Given her recent dissents, it is important

8. Waslin, supra note 5, at 54–64.

9. See, e.g., Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019); Thomas and Thompson, 27

I&N Dec. 674 (A.G. 2019); Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), overruled by Guillen

-Acosta v. Barr, 799 Fed. Appx. 212, 2020 U.S. App. LEXIS 10445, and Romero v. Barr,

937 F.3d 282, 2019 U.S. App. LEXIS 26241, 2019 WL 4065596; A-B-, 27 I&N Dec. 316

(A.G. 2018).

10. Allan Smith, ‘Unforgivable’: Trump’s Days of Immigration Statements Come

Under Fire, NBC N

EWS (Apr. 14, 2019), https://www.nbcnews.com/politics/immigration

/unforgivable-trump-s-days-immigration-statements-come-under-fire-n994281 [http://

perma.cc/C43R-R75Y].

11. See Madison J. Scaggs, Comment, How Nationwide Injunctions Have Thwarted

Recent Immigration Policy, 105 I

OWA L. REV. 1447, 1448 (2020).

12. See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 H

ARV.

L. R

EV. 123, 124 (2019).

13. Neil S. Siegel, The Supreme Court Is Avoiding Talking About Race, T

HEATLANTIC

(Aug. 7, 2020), https://www.theatlantic.com/ideas/archive/2020/08/supreme-court-doesn’t

-like-talk-about-race/614944 [http://perma.cc/3SUV-P6HZ].

14. Richard Wolf, “The People’s Justice”: After Decade on Supreme Court, Sonia

Sotomayor Is Most Outspoken on Bench and off, USA T

ODAY (Aug. 8, 2019, 3:01 AM),

98 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

to examine their impact on the United States immigration system

and how they challenge existing norms that permeate the history of

immigration laws in the United States.

Her dissents have also

challenged the Court’s shadow docket in issuing orders that do not

make it to the oral argument calendar by issuing written dissenting

opinions.

In addition, Justice Sotomayor’s recent dissents must be

placed in context of the overall trajectory of her jurisprudence on im-

migration cases. In 2014, immigration law scholar Cristina Rodríguez,

in Uniformity and Integrity in Immigration Law: Lessons from the

Decisions of Justice (and Judge) Sotomayor, focused on the theorical

value of Justice Sotomayor’s immigration opinions within the “messier

reality” of the immigration system.

Through her decisions, Sotomayor has established a record of forc-

ing the country to examine discriminatory immigration norms. In her

first 2009 opinion as a Justice, Mohawk Industries, Inc. v. Carpenter,

she challenged the use of the term illegal in reference to people.

a Yale Symposium, Justice Sotomayor explained the need for the

Court to weigh in on public discourse on the term illegal. She stated:

To dub every immigrant a criminal because they’re undocumented,

to call them “illegal aliens,” seemed, and has seemed, insulting to

me. Many of these people are people I know, and they’re no differ-

ent than the people I grew up with or who share my life. And

they’re human beings with a serious legal problem, but the word

“illegal” alien made them sound like those other kinds of criminals.

And I think people then paint those individuals as something

less than worthy human beings. And it changes the conversation

when you recognize that this is a different—it’s a regulatory prob-

lem. We’ve criminalized a lot of it, but it started as, and funda-

mentally remains, a regulatory problem, not a criminal one. And

so that’s why I chose my words.

Justice Sotomayor’s dissents challenge existing norms within the

United States immigration system, which has deference baked into its

structure.

Her dissents demonstrate a pattern of requiring adherence

https://www.usatoday.com/story/news/politics/2019/08/08/justice-sonia-sotomayor-su

preme-court-liberal-hispanic-decade-bench/1882245001 [http://perma.cc/FBG8-9SBJ].

15. See Cristina M. Rodríguez, Uniformity and Integrity in Immigration Law: Lessons

from the Decisions of Justice (and Judge) Sotomayor, 123 Y

ALE L.J. F. 499, 500, 506, 510

(2014).

16. Wolf v. Cook Cnty., 140 S. Ct. 681 (2020); Barr v. East Bay Sanctuary Covenant,

140 S. Ct. 3 (2019).

17. Rodríguez, supra note 15, at 500.

18. See Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 103–04 (2009).

19. Justice Sonia Sotomayor & Linda Greenhouse, A Conversation with Justice

Sotomayor, 123 Y

ALE L.J. F. 375, 387 (2014).

20. Johnson, supra note 4, at 64.

2020] DECONSTRUCTING INVISIBLE WALLS 99

to process and demanding that the Court examine the Administra-

tion’s policies in context of their xenophobic and discriminatory

rhetoric.

The dissents recognize that, where the structure of the

immigration system requires deference, there is a corresponding need

to adhere to procedure where decisions disproportionately impact

immigrant communities based upon their race, gender, and class.

Since 2017, Justice Sotomayor’s dissenting opinions have fo-

cused on strict adherence to process and procedure, while pushing

the Supreme Court to not ignore the discriminatory and xenophobic

context and motivation of the President’s immigration executive ac-

tions.

In conceptualizing how her opinions impact race, gender,

and social justice, this Article highlights two important functions of

her dissents for justice at the borders: (1) forcing future courts to bal-

ance the longstanding plenary powers doctrine when executive actions

are rife with discriminatory animus; and (2) the need to strictly adhere

to process

when the Court is upholding doctrines that privilege

executive actions that disproportionately impact immigrants of color.

The last Part of the Article considers the impact of her decisions at

the intersection of race, gender, and immigration status by evaluating

how her decisions might “appeal . . . to the intelligence of a future

day”;

propel legislative action;

and serve the public role of signal-

ing to marginalized communities that someone is listening.

I. SUBJECTING THE PLENARY POWERS DOCTRINE TO

STRINGENT STANDARD OF REVIEW

This Section discusses Justice Sotomayor’s dissent in Trump v.

Hawaii.

This dissent must be placed in the context of the plenary

powers doctrine. Historically, through the plenary powers doctrine,

21. Tracey L. Meares & Tom R. Tyler, Justice Sotomayor and the Jurisprudence of

Procedural Justice, 123

ALE L.J. F. 525, 527 (2014).

22. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1917–18 (2020) (Sotomayor, J., dissenting).

23. Meares & Tyler, supra note 21, at 526.

24. Id. (defining Justice Sotomayor’s jurisprudence as one focused on process that

emphasizes making decisions fairly).

25. See Hon. Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 M

INN.L.

EV. 1, 4 (2010) (“A dissent in a Court of last resort is an appeal . . . to the intelligence

of a future day, when a later decision may possibly correct the error into which the

dissenting judge believes the court to have been betrayed.”).

26. See id. at 7 (citing as example Justice Ginsburg’s own dissent in Ledbetter v.

Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)).

27. Meares & Tyler, supra note 21, at 539 (stating that Justice Sotomayor “has her

finger on the pulse of the American public and hence has a good sense of how to create

and maintain legitimacy for the Court and its decisions”).

28. Trump v. Hawaii, 138 S. Ct. 2392, 2433 (2018).

100 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

courts have deferred to the political branches’ authority to regulate

immigration.

Immigration scholar Kevin Johnson posits that the

increase in this Administration’s executive orders might expand the

constitutional rights of immigrants where traditionally the execu-

tive branch’s decisions have been subjected to limited review.

This

Section discusses how Sotomayor’s dissent in Trump v. Hawaii chal-

lenges the longstanding precedent of immigration exceptionalism in

subjecting executive actions to a stringent standard of review where

the constitutional rights of immigrants of color and religious minori-

ties are implicated.

A. Travel Ban Case: Trump v. Hawaii

On September 24, 2017, the President issued a Proclamation

entitled Enhancing Vetting Capabilities and Processes for Detecting

Attempted Entry Into the United States.

In Trump v. Hawaii (also

known as the Travel Ban Case), the plaintiffs challenged the Presi-

dent’s 2017 Proclamations and Orders restricting the entry of foreign

nationals from Muslim majority countries.

The President issued

the Orders asserting:

[C]ertain entry restrictions were necessary to “prevent the entry

of those foreign nationals about whom the United States Gov-

ernment lacks sufficient information”; “elicit improved identity

management and information sharing protocols and practices

from foreign governments”; and otherwise “advance [the] foreign

policy, national security, and counterterrorism objectives of the

United States. Proclamation § 1(h).”

The plaintiffs argued that the President’s Orders and Proclamation

violated the Immigration and Nationality Act and the Establish-

ment Clause of the First Amendment to the U.S. Constitution where

the orders were “motivated not by concerns pertaining to national

security but by [a discriminatory] animus toward Islam.”

The procedural history of this case and the enactment of the

executive orders are very important to understand the context in

which Sotomayor wrote her dissent. In January 2017, President

29. Kevin R. Johnson, Immigration and Civil Rights in the Trump Administration:

Law and Policy Making by Executive Order, 57 S

ANTA CLARA L. REV. 611, 659 (2017).

30. Id. at 615–16.

31. Trump, 138 S. Ct. at 2441.

32. Id. at 2404.

33. Id. at 2406.

34. Id. at 2405.

35. Id. at 2406.

2020] DECONSTRUCTING INVISIBLE WALLS 101

Trump signed Executive Order 13769—Protecting the Nation from

Foreign Terrorist Entry Into the United States.

The Order banned

the entry of immigrants from seven Muslim majority countries.

Multiple civil rights organizations and individuals filed lawsuits in

Hawaii, Washington, and the District of Columbia.

After the law-

suits were filed, the Ninth Circuit

and the United States District

Court for District of Columbia

issued nationwide injunctions

halting the enforcement of the travel ban. After the injunction, the

President revoked the Order and replaced it with Executive Order

13780.

This Order removed Iraq from the list of travel banned

countries.

Thereafter, the President issued many revisions to the

orders, in some instances removing countries that he deemed com-

plied with the orders’ requirements.

The Supreme Court upheld the travel ban in a 5–4 decision.

Four of the Supreme Court Justices believed that an anti-Muslim ani-

mus motivated the Administration’s travel ban.

Justice Sotomayor

authored a dissenting opinion, which Justice Ginsburg joined.

Jus-

tice Sotomayor’s dissent extensively documented Trump’s words dur-

ing and after the 2016 campaign and asked the question whether a

reasonable observer would conclude that the proclamation was

motivated by anti-Muslim animus.

In the dissent, she stated:

The Court’s decision today fails to safeguard that fundamental

principle. It leaves undisturbed a policy first advertised openly and

36. Davide De Lungo, Protecting the Nation From Foreign Terrorist Entry Into the

United States: A Constitutional Analysis of President Trump’s Executive Orders, 9 I

TALIAN

J. PUB. L. 189, 190 (2017).

37. See Trump, 138 S. Ct. at 2403.

38. See, e.g., Complaint, Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No.

2:17-cv-00141-JLR); Complaint, Ali v. Trump, No. C17-0135JLR (W.D. Wash. Jan. 30,

2017); Complaint, Arab Am. Civil Rights League v. Trump, 399 F. Supp. 3d 717 (E.D.

Mich. 2017) (No. 2:17-cv-10310-VAR-SDD); Complaint, Hawaii v. Trump, 233 F. Supp.

3d 850 (D. Haw. 2017) (No. 17-00050 DKW-KJM); Complaint, Pars Equal. Ctr. v. Trump,

No. 1:17-cv-00255 (TSC) (D.D.C. Feb. 8, 2017); Complaint, Int’l Refugee Assistance Project

v. Trump, 404 F. Supp. 3d 946 (D. Md. 2017) (No. 8:17-cv-00361-TDC); Complaint, Uni-

versal Muslim Ass’n of Am., Inc. v. Trump, No. 1:17-cv-00537-TSC (D.D.C. Mar. 27, 2017);

Complaint, Iranian Alliances Across Borders v. Trump, No. 8:17-cv-02921-GJH (D. Md.

Oct. 2, 2017); Complaint, Zakzok v. Trump, No. 1:17-cv-02969-GLR (D. Md. Oct. 6, 2017).

39. Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017).

40. Pars Equal. Ctr. v. Trump, No. 17-cv-0255 (TSC), 2018 U.S. Dist. LEXIS 70512,

at *13 (D.D.C. March 2, 2018).

41. De Lungo, supra note 36, at 191.

42. See Trump, 138 S. Ct. at 2404.

43. See id. at 2403–06 (Breyer, J., dissenting) (Sotomayor, J., dissenting).

44. Id. at 2402; see also Kevin R. Johnson, Keynote to Immigration in the Trump Era

Symposium: Judicial Review and the Immigration Laws, 48 S

W.L.REV.463, 465 (2019).

45. See Trump, 138 S. Ct. at 2433 (Breyer, J., dissenting) (Sotomayor, J., dissenting).

46. Id. at 2433.

47. Id. at 2434–36.

102 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

unequivocally as a “total and complete shutdown of Muslims enter-

ing the United States” because the policy now masquerades behind

a façade of national-security concerns. But this repackaging does

little to cleanse Presidential Proclamation No. 9645 of the ap-

pearance of discrimination that the President’s words have cre-

ated. Based on the evidence in the record, a reasonable observer

would conclude that the Proclamation was motivated by anti-

Muslim animus.

Further, the dissent firmly asserted: “[w]hatever the merits of plain-

tiffs’ complex statutory claims, the Proclamation must be enjoined

for a more fundamental reason: It runs afoul of the Establishment

Clause’s guarantee of religious neutrality.”

The dissent asserts

that the Court should subject an administration’s immigration de-

cisions to strict review when there is strong evidence of the presence

of discriminatory animus.

Her dissent began by evaluating the

constitutionality of the Presidential Proclamation under the First

Amendment’s Establishment Clause.

Her dissent provided a historical overview of the President’s

anti-Muslim comments through the issuance of the Executive Or-

ders and Presidential Proclamations.

She provided the historical

background of the Executive Orders as the basis of her dissent and

posited that the Executive Orders could not be separated from their

origins.

Given the President’s statements, Sotomayor concluded:

Ultimately, what began as a policy explicitly “calling for a total

and complete shutdown of Muslims entering the United States”

has since morphed into a “Proclamation” putatively based on

national-security concerns. But this new window dressing can-

not conceal an unassailable fact: the words of the President and

his advisers create the strong perception that the Proclamation

is contaminated by impermissible discriminatory animus against

Islam and its followers.

The dissent prioritized an individual’s constitutional rights over

immigration and national security priorities.

While the majority

set aside the President’s statements and encouraged deference to

48. Id. at 2433.

49. Id. at 2433–34.

50. See id. at 2440–41.

51. Trump, 138 S. Ct. at 2434–35.

52. Id. at 2435–38.

53. See id. at 2438.

54. Id. at 2440.

55. See id.

2020] DECONSTRUCTING INVISIBLE WALLS 103

immigration and national security matters,

the dissent posited that

the majority “incorrectly applie[d] a watered-down legal standard in

an effort to short circuit plaintiffs’ Establishment Clause claim.”

Justice Sotomayor distinguished the cases on which the major-

ity relied, Kerry v. Din

and Kleindienst v. Mandel,

asserting that

they were not applicable. For Sotomayor, the distinguishing factors

in Din and Mandel were that the cases “involved . . . [the] Executive

Branch[’s] decision to exclude a single foreign national under a spe-

cific . . . ground of inadmissibility.”

Whereas, in Trump v. Hawaii,

the travel ban impacted millions of people on a single categorical

basis—their religion.

She further posited that Mandel and Din did

not attempt to create a “framework for adjudicating cases (like this

one) involving claims that the executive branch violated the Estab-

lishment Clause by acting pursuant to an unconstitutional purpose.”

For Sotomayor, these two factors were dispositive.

Certainly, Justice Sotomayor’s analysis extends beyond the tra-

ditional deference courts have given to immigration executive actions.

In the dissent, she clearly signaled to future courts how to balance

the longstanding plenary powers doctrine when executive actions

contain a discriminatory animus.

She asserted:

[E]ven assuming that Mandel and Din apply here, they would

not preclude us from looking behind the face of the Proclamation

because plaintiffs have made “an affirmative showing of bad faith,”

by the President who, among other things, instructed his subor-

dinates to find a “lega[l]” way to enact a Muslim ban . . . .

She highlighted the fact that the Court has not ruled on a simi-

lar case where a President issued a Proclamation excluding a large

segment of one particular religion.

B. Ending Immigration Exceptionalism Through Exhaustive

Review of Executive Actions

This dissent is significant for two reasons. First, the dissent high-

lighted the ways in which the majority opinion is similar to the case

56. Id. at 2440.

57. Trump, 138 S. Ct. at 2440.

58. Kerry v. Din, 576 U.S. 86, 88–89 (2015).

59. Kleindienst v. Mandel, 408 U.S. 753, 767–68 (1972).

60. Trump, 138 S. Ct. 2440 n.5.

61. Id.

62. Id.

63. See id. at 2441 n.6.

64. Id. at 2440 n.5.

65. See id. at 2441 n.6.

104 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

in which overturned Korematsu v. United States.

The Korematsu de-

cision similarly deferred to a racist and xenophobic presidential policy

that interred Japanese Americans.

Second, the dissent challenged

the plenary powers doctrine when constitutional rights are implicated

under the Establishment Clause.

Similar to the Administration’s

Muslim Ban, the Supreme Court in Korematsu “gave ‘a pass [to] an

odious, gravely injurious racial classification’ authorized by an ex-

ecutive order.”

Sotomayor emphasized the parallel nature of both cases where

the government “invoked an ill-defined national security threat to

justify an exclusionary policy of sweeping proportion.”

The dissent

drew parallels between the travel ban and the government in

Korematsu’s policies that were similarly based in discriminatory

stereotypes to justify exclusionary immigration policies.

Both the

Hawaii and Korematsu decisions were based in xenophobic and

discriminatory notions that a particular group could not assimilate

and thus was a national security risk to the United States.

Justice

Sotomayor quotes, in full, Justice Murphy’s dissent in Korematsu:

“‘[I]t is essential that there be definite limits to [the government’s]

discretion,’ as ‘[i]ndividuals must not be left impoverished of their

constitutional rights on a plea of military necessity that has neither

substance nor support.’”

Justice Murphy’s language could be easily

supplanted into Sotomayor’s dissent in Trump v. Hawaii. Like the

dissenting Justices in Korematsu, Sotomayor’s dissent presages how

the majority’s opinion may similarly harm the “constitutional fab-

ric.”

She powerfully stated:

This formal repudiation of a shameful precedent is laudable and

long overdue. But it does not make the majority’s decision here

acceptable or right. By blindly accepting the Government’s mis-

guided invitation to sanction a discriminatory policy motivated

by animosity toward a disfavored group, all in the name of a

superficial claim of national security, the Court redeploys the

66. See Trump, 138 S. Ct. at 2447–48 (citing Korematsu v. United States, 323 U.S.

214, 215 (1944)).

67. See Korematsu, 323 U.S. at 217, 219.

68. See Trump, 138 S. Ct. at 2440–41.

69. Id. at 2447.

70. Id. (citing Brief for Japanese American Citizens League as Amicus Curiae

Supporting Petitioner, Korematsu v. United States, 323 U.S. 214 (1944) (No. 22), 1944

WL 42852, at *12–14).

71. Id.

72. Id. at 2447–48 (citing Korematsu, 323 U.S. at 236–40 (Murphy, J., dissenting)).

73. Id. at 2448 (citing Korematsu, 323 U.S. at 234 (Murphy, J., dissenting)).

74. Trump, 138 S. Ct. at 2447–48.

2020] DECONSTRUCTING INVISIBLE WALLS 105

same dangerous logic underlying Korematsu and merely replaces

one “gravely wrong” decision with another.

In addition to drawing parallels between Korematsu and the instant

case, Sotomayor called for a thorough examination of the intent

behind the facially neutral Presidential Proclamation and, unlike

the majority, she would have applied “a more stringent standard of

review.”

Justice Sotomayor asserted, however, that under any form

of review—heightened or rational basis—the administrative actions

were unconstitutional.

Justice Sotomayor enumerated the President’s multiple state-

ments to demonstrate the President’s discriminatory animus. For

example:

• Campaign trail statement from President—“Statement

on Preventing Muslim Immigration” that called for a

“total and complete shutdown of Muslims entering the

United States until our country’s representatives can

figure out what is going on.”

• Candidate Trump also stated, “Islam hates us” and

asserted that the United States was “having problems

with Muslims coming into the country.”

• Shortly after being elected, when asked whether vio-

lence in Europe had affected his plans to “ban Muslim

immigration,” the President replied, “You know my

plans. All along, I’ve been proven to be right.”

Sotomayor asserted that the Presidential Proclamations could

not be separated from their “express hostility toward Muslims.”

She intentionally cited to the voluminous record evidence of anti-

Muslim animus to support the conclusion that the Proclamation did

not have a legitimate basis.

The dissent cited to the Constitutional

Law Scholars Amicus Brief, which argued that when there is a

discriminatory animus, presidential deference to executive actions

should not be upheld.

The amicus asserted, “no matter how many

75. Id. at 2448.

76. See id. at 2441.

77. Id.

78. Id. at 2417.

79. Id.

80. Trump, 138 S. Ct. at 2417.

81. Id. at 2441–42.

82. Id. at 2442.

83. See id. at 2443.

106 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

officials affix their names to it, the Proclamation rests on a rotten

foundation.”

A hallmark of many of Justice Sotomayor’s opinions is her focus

on procedural fairness.

Her immigration dissents similarly focus

on whether the Administration’s executive actions adhere to the

proper procedure; and the Court’s adherence to proper procedural

rules.

She highlighted the fact that in issuing the Executive Orders,

the President engaged in an administrative review process that was

not disclosed to the public.

She stated, “[i]gnoring all this, the major-

ity empowers the President to hide behind an administrative review

process that the Government refuses to disclose to the public.”

Pointing back to the structure of the Immigration and Nationality

Act, she stated that the remedy for which the President allegedly

sought to address in his orders would be to simply rely upon the struc-

ture of the Immigration and Nationality Act (INA), which already

accounted for the concerns the President seeks to address.

The statu-

tory scheme of the INA “already . . . fulfills the putative national-

security interests the Government now puts forth to justify the

Proclamation. Tellingly, the Government remains wholly unable to

articulate any credible national-security interest that would go unad-

dressed by the current statutory scheme absent the Proclamation.”

The standard that emerges from the dissent is one that dimin-

ishes the plenary powers doctrine and immigration exceptionalism.

The standard would eliminate automatic deference and subject the

executive branch’s immigration decisions to constitutional norms.

The dissent is suggesting that the political branches’ immigration

actions should be subjected to constitutional review.

Justice Sotomayor’s dissent must be placed within the wider

context of Supreme Court immigration jurisprudence and the ple-

nary powers doctrine. Historically, the Supreme Court has been

extremely deferential to the political branches’ authority over immi-

gration.

This deference has been upheld even when violations of

84. Id. (quoting Brief for Constitutional Law Scholars as Amici Curiae).

85. Id. at 2442–43.

86. Trump, 138 S. Ct. at 2442–44.

87. See Trump, 138 S. Ct. at 2443.

88. Id.

89. Id. at 2443–44.

90. Id. at 2444.

91. See id.

92. See id.

93. See Trump, 138 S. Ct. at 2441 n.6.

94. See Karla Mari McKanders, Federal Preemption and Immigrants’ Rights, 3 W

AKE

FOREST J.L. & POL’Y 333, 340 (2013).

2020] DECONSTRUCTING INVISIBLE WALLS 107

individual constitutional rights are alleged.

“[T]he history of Amer-

ica’s immigration laws gives us insight into categories of people who

were undesirable during a particular moment in our nation’s history

and justification for closely monitoring the constitutionality of laws

that target immigrant populations.”

The Chinese Exclusion Act

cases demonstrate the depth of the plenary powers doctrine.

These

cases provide the foundation for excluding immigration laws from

judicial review when a discriminatory animus is present.

Since the

Chinese Exclusion Act cases, the plenary powers doctrine has lim-

ited how far individual constitutional rights extend to immigrants.

This doctrine is based upon the idea that a country, as a sovereign,

has the ability to create laws that are in their own interest.

100

“Tra-

ditionally immigration laws are considered a nation’s prerogative[,]

as a nation-state has the ability to discriminate against who is

permitted to enter.”

101

95. See id. (“[T]he Plenary Powers Doctrine has shielded congressional immigration

determinations from substantive constitutional review.”); see also Johnson, supra note

44, at 465 (“One of the foundations of immigration law has been something called the

‘plenary power doctrine,’ which is akin to a constitution-free zone for the immigration

laws and, at times, Executive actions.”).

96. McKanders, supra note 94, at 341.

97. See id.

98. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“‘[O]ver no conceivable subject is the

legislative power of Congress more complete than it is over’ the admission of aliens.”

(quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909))); Chae Chan

Ping v. United States, 130 U.S. 581, 603–04 (1889) (laying out the plenary powers

doctrine which attributed the power as inherent to a sovereign nation); see also Chris

Nwachukwu Okeke & James A.R. Nafziger, United States Migration Law: Essentials for

Comparison, 54 A

M.J.COMP. L. 531, 544 (2006) (stating “a cardinal doctrine of United

States constitutional law is that Congress has an inherent, plenary power in matters of

immigration”); Peter J. Spiro, Learning to Live with Immigration Federalism, 29 C

ONN.

EV. 1627, 1630 (1997) (“[T]he federal government has enjoyed a virtual carte blanche

on immigration matters.”).

99. See Kerry Abrams, Plenary Power Preemption, 99 V

A.L.REV. 601, 601 (2013); see

also Johnson, supra note 44, at 465 (defining characteristic of plenary powers doctrine

as “immigration exceptionalism”).

100. See Plyler v. Doe, 457 U.S. 202, 225 (1982) (“Drawing upon [its Article I, section

8] power, upon its plenary authority with respect to foreign relations and international

commerce, and upon the inherent power of a sovereign to close its borders, Congress has

developed a complex scheme governing admission to our Nation and status within our

borders.”); see also Fiallo, 430 U.S. at 787 (“Our cases ‘have long recognized the power

to expel or exclude aliens as a fundamental sovereign attribute exercised by the Gov-

ernment’s political departments . . . .’”); League of United Latin Am. Citizens v. Wilson,

908 F. Supp. 755, 768 (C.D. Cal. 1995) (citing Nishimura Ekiu v. United States, 142 U.S.

651, 659 (1892) (recognizing the inherent power of a sovereign nation to control its

borders)); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (pointing out that

the Constitution vests the national government with absolute control over international

relations); Chae Chan Ping, 130 U.S. at 603 (stating that the government’s power to

exclude aliens from the United States is not open to controversy).

101. McKanders, supra note 94, at 340 (citing Chae Chan Ping, 130 U.S. at 603–04).

108 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

Immigration systems and borders are predicated on membership

and belonging. Membership and belonging are narrowly construed

and available to a limited few. The plenary powers doctrine affirms

that sovereign nations inherently have the power to exclude or in-

clude noncitizens from its borders based upon criteria on which its

citizenry decides through elected officials.

102

Historically, the immigration system’s structure has given the

political branches unfettered discretion over who enters and exits

the country.

103

The Supreme Court has limited powers to review the

congressional actions and the President’s discretion.

104

The political

branches’ authority to regulate immigration is an inherent power—

as a sovereign the President can conduct foreign affairs and make

decisions to protect the country’s national security and implicate for-

eign affairs.

105

This is a political question. There has been a histori-

cal progression of federal regulation of immigration that has led to

judicial deference to congressional and executive actions.

106

Historically, the criteria upon which immigration laws are based

have been discriminatory.

107

Immigration laws have been based on

societal bias and prejudices, reinforced existing class and wealth

structures, or included arbitrary reasons for exclusion and inclusion.

108

In the United States, immigration laws have operated to maintain

homogeneity to the exclusion of immigrants of color.

109

Immigration

laws have traditionally utilized fear and exclusion to define what

America should look like, privileging the entry of immigrants of

European descent.

110

102. See id. at 340–42; see also Abrams, supra note 99, at 611–18.

103. Anne Y. Lee, The Unfettered Executive: Is There an Inherent Presidential Power

to Exclude Aliens?, 39 C

OLUM. J.L. & SOC.PROBS. 223, 228, 240 (2005).

104. See id. at 228.

105. Id. at 238–41.

106. See Stephen H. Legomsky, Immigration Law and the Principle of Plenary Con-

gressional Power, 1984 S

UP.CT.REV. 255, 258–60 (1984). From this historical progression,

immigration laws and executive actions have been subjected to limited review creating

a form of immigration exceptionalism—especially when citizens’ and noncitizens’ funda-

mental constitutional rights are implicated.

107. See McKanders, supra note 94, at 334–35.

108. See id. at 343–44.

109. See id.; see also Daina C. Chiu, The Cultural Defense: Beyond Exclusion, Assimi-

lation, and Guilty Liberalism, 82 C

AL.L.REV. 1053, 1059, 1066–68 (1994).

110. See McKanders, supra note 94, at 341–44; see also Emergency Immigration Act

of 1921, the Immigration Restriction Act of 1921, the Per Centum Law, and the Johnson

Quota Act, ch. 8, 42 Stat. 5 (the Quota law placed numerical restrictions on certain nation-

alities limiting migration from southern and eastern Europe. The restrictions greatly

impacted the demographics of the United States until the 1964 Immigration Act removed

numerical restrictions forever altering the demographics of noncitizens immigrating to

the United States).

2020] DECONSTRUCTING INVISIBLE WALLS 109

The Court’s 5–4 Hawaii v. Trump decision is a step towards sub-

jecting executive actions to a “stringent standard of review,”

111

when,

as here, the First Amendment Establishment Clause and freedom

of religion are implicated. When this occurs, the dissent would have

courts examine facially neutral statutes to “discern” whether the

executive policy bears “a relationship to legitimate state interests.”

112

The analysis would involve a rigorous examination into the history

that leads up to the promulgation of the executive actions and a

rigorous analysis of executive action in relation to the statutory

framework of the Immigration and Nationality Act. If this standard

were applied, this would reorient the immigration system which has

historically been highly deferential to executive and congressional

authority and, in very limited circumstances has prioritized consti-

tutional rights.

113

II. EXECUTIVE ACTIONS RECONSTRUCTING OUR BORDERS

MUST ADHERE TO THE RULE OF LAW

A theme throughout Sotomayor’s dissents is that the executive

branch should not be exempt from complying with the rule of law.

114

In multiple speeches, she has focused on how strict adherence to pro-

cess and procedure provides a necessary legitimating function to the

courts.

115

Sotomayor asserts, “And I can live with that if I perceive

the process to be fair.”

116

Justice Sotomayor has been called the Peo-

ple’s Justice for her constant desire to create and maintain the

Supreme Court’s legitimacy with the public.

117

Accordingly, her recent

immigration dissents focus on curtailing administrative actions that

attempt to reconstruct borders without adhering to the rule of law.

118

The following section discusses two different categories of dis-

sents that serve the same function—eliminating immigration excep-

tionalism through adherence to the rule of law. First, in Department

of Homeland Security v. Regents of the University of California,

Sotomayor’s dissent asserts that the majority erred in not permit-

ting the case to proceed beyond the summary judgment stage for the

111. Four justices reviewed the executive actions under a heightened standard of

review. Trump v. Hawaii, 138 S. Ct. 2392, 2441 (2018).

112. Id. at 2441–42.

113. See Plyler v. Doe, 457 U.S. 202, 225 (1982).

114. See Meares & Tyler, supra note 21, at 529.

115. See id. at 526, 528–29.

116. Id. at 527.

117. Id. at 539 (“[T]he Justice has her finger on the pulse of the American public and

hence has a good sense of how to create and maintain legitimacy for the Court and its

decisions.”).

118. See Waslin, supra note 5, at 54–65.

110 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

examination and development of the plaintiffs’ discrimination

claims.

119

Second, in Wolf v. Cook County and Barr v. East Bay Sanc-

tuary Covenant, her dissent highlights the extraordinary measures

the Court took in considering lifting lower courts’ injunctions at a

procedurally premature stage in the case.

120

A. Department of Homeland Security v. Board of Regents of the

University of California

The Supreme Court’s decision in Department of Homeland

Security v. Regents of the University of California

121

considered the

narrow issue of whether the Department of Homeland Security’s

(DHS) rescission of the Deferred Action for Childhood Arrivals (DACA)

program complied with the Administrative Procedures Act (APA).

122

Justice Roberts wrote the majority opinion.

123

Justice Sotomayor con-

curred in part and dissented in part from the majority decision.

124

The majority decision did not rule on the legality of DACA and

the Administration’s rescission of DACA.

125

Correspondingly, as

addressed in Justice Sotomayor’s dissent, the decision did not hold

that the Administration’s actions in rescinding DACA were under-

girded by a discriminatory animus towards the Latinx community.

126

The Court’s decision was limited to the legal issue of whether the

Department of Homeland Security properly followed the APA when

it rescinded DACA.

127

The Court held DHS did not.

128

The majority held that the Department of Homeland Security

failed to fully consider both: (1) the forbearance that DACA extends to

its recipients; and (2) that DACA recipients have a “reliance inter-

est” in the benefits it confers—work authorization, social security,

and Medicare.

129

While the Court’s opinion affirmed core principles

of agency accountability and public confidence not convenience, the

majority’s opinion is very narrow.

130

The decision left open the

119. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1917

(2020).

120. See Wolf v. Cook Cnty., 140 S. Ct. 681, 681–83 (2020).

121. See Trump v. NAACP, 139 S. Ct. 2779 (2019) (consolidating Batalla Vidal v.

Nielsen, 291 F. Supp. 3d 260 (E.D.N.Y. 2018) and Regents of the Univ. of Cal. v. U.S.

Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018)).

122. Regents of the Univ. of Cal., 140 S. Ct. at 1905.

123. Id. at 1901.

124. Id. at 1916 (Sotomayor, J., dissenting in part and concurring in part).

125. Id. at 1905.

126. Id. at 1915–16.

127. Id. at 1916.

128. Regents of the Univ. of Cal., 140 S. Ct. at 1910, 1916–17.

129. Id. at 1906, 1914, 1929–30.

130. See id. at 1916.

2020] DECONSTRUCTING INVISIBLE WALLS 111

possibility that the Administration could comply with the APA and

rescind DACA.

131

Justice Sotomayor concurred with the majority’s holding that

the rescission of DACA violated the APA, yet she dissented with the

majority’s decision to foreclose review of the plaintiff’s equal protec-

tion claims, given the procedural posture of the case.

132

She asserted

that the procedural posture of the case—at the motion to dismiss

stage—precluded respondents from being able to fully develop the

record on their equal protection claims.

133

Unlike the majority, the

dissent suggests that the disparate impact of the rescission on the

Latinx community could not be considered in isolation of the Presi-

dent’s policy agenda.

134

Justice Sotomayor cited some of the Administration’s statements

asserted in the complaints as evidence that the record needed further

development.

135

She cited: “The Batalla Vidal complaints catalog

then-candidate Trump’s declarations that Mexican immigrants are

‘people that have lots of problems,’ ‘the bad ones,’ and ‘criminals, drug

dealers, [and] rapists.’”

136

The Regents complaints additionally quote

President Trump’s 2017 statement comparing undocumented immi-

grants to ‘animals’ responsible for ‘the drugs, the gangs, the cartels,

the crisis of smuggling and trafficking, [and] MS13.’”

137

The majority

of the complaints in the litigation contained voluminous discrimina-

tory statements by President Trump.

138

In addition, the underlying complaints contained more evidence

of a possible discriminatory animus, including:

President Trump’s statements and actions reflect a pattern of

bias against Mexicans and Latinos. For example, on February 24,

2015, President Trump demanded that Mexico “stop sending

131. Id. at 1897.

132. Id. at 1917–18.

133. Id.

134. Regents of the Univ. of Cal., 140 S. Ct. at 1917–18.

135. Id.

136. Id. at 1917 (citing Complaint at ¶ 91, Batalla Vidal v. Nielsen, 291 F. Supp. 3d

260 (E.D.N.Y. 2018) (No. 1:16-cv-04756) (“In his presidential announcement speech,

then-candidate Trump stated: ‘When Mexico sends its people, they’re not sending their

best . . . . They’re sending people that have lots of problems, and they’re bringing those

problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.’”)).

137. Id. (citing Complaint at ¶¶ 101–13, 124, Garcia v. United States, No. 3:17-cv-05

380-JCS (N.D. Cal. filed Sept. 18, 2017)).

138. See Complaint at ¶¶ 91–100, Batalla Vidal v. Nielsen, No. 1:16-cv-04756(NGG)

(JO) (291 F. Supp. 3d 260) (containing Trump’s discriminatory statements); Complaint,

Santa Clara Cty. v. Trump, No. 5:17-cv-05813 (N.D. Cal. filed Oct. 10, 2017); Complaint

at ¶¶ 101–13, 124, Garcia v. United States, No. 3:17-cv-05380 (N.D. Cal. filed Sep. 18,

2017); Complaint at ¶¶ 1, 32–35, Cty. of San Jose v. Trump, No. 3:17-cv-05329-WHA

(N.D. Cal. filed Sept. 14, 2017); Complaint at 239–49, New York v. Trump, No. 1:17-cv-

05228 (E.D.N.Y. filed Sept. 6, 2017).

112 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

criminals over our border.” On March 5, 2015, President Trump

tweeted that he “want[ed] nothing to do with Mexico other than

to build an impenetrable WALL . . . .”

139

Since his inauguration, Defendant Trump has continued to ex-

press animus toward Mexicans and Latinos through both his

words and actions. In August 2017, in a speech in Arizona,

Defendant Trump described some undocumented immigrants as

“animals.”

140

On August 25, 2017, President Trump pardoned former Maricopa

County Sheriff Joe Arpaio, who was to be sentenced for criminal

contempt for failing to comply with a federal judge’s order to

stop racially profiling Latinos.

141

The dissent focused on how the President’s racist statements pro-

vided the main reason for which DACA was rescinded.

142

She high-

lighted how, if the facts asserted in each consolidated case complaints

were developed, it might lead to a demonstration of a violation of

the Equal Protection Clause.

143

“Taken together, ‘the words of the

President’ help to ‘create the strong perception’ that the rescission

decision was ‘contaminated by impermissible discriminatory animus.’

This perception provides respondents with grounds to litigate their

equal protection claims further.”

144

Second, the dissent challenged the majority’s minimization of

the disproportionate impact of the recission on the Latinx commu-

nity.

145

The majority asserted that the equal protection claim fails

where any immigration policy will per se have a disproportionate

impact on the Latinx community.

146

In response, the dissent asserted

that the impact of the rescission could not be viewed in isolation

from, but within, “the context of the President’s public statements

on and off the campaign trail.”

147

Referencing back to the procedural posture of the case, Justice

Sotomayor asserted that because the case was only at the motion-to-

dismiss stage, the case needed to be remanded for further explora-

tion of whether the executive action “disproportionately harms the

139. Complaint at 101, Garcia, No. 3:17-cv-05380.

140. Complaint at 97, Batalla Vidal, 291 F. Supp. 3d 260.

141. Complaint at 249, Trump, No. 1:17-cv-05228.

142. See Regents of the Univ. of Cal., 140 S. Ct. at 1917.

143. Id.

144. Id. (quoting Trump v. Hawaii, 138 S. Ct. 2391, 2440 (2018) (Sotomayor, J.,

dissenting)).

145. Id. at 1917–18.

146. Id. at 1915.

147. Id. at 1918.

2020] DECONSTRUCTING INVISIBLE WALLS 113

same racial group that the President branded as less desirable mere

months earlier.”

148

To Sotomayor, the timing of the change in policy

demonstrated that legality of DACA was pretextual.

149

She suggested

that the abruptness of the change demonstrated an incongruence

between the decision and the rationale.

150

Ultimately, her dissent stressed the importance of adherence to

procedure, which reinforces the legitimacy of the Supreme Court.

151

Here, the failure to permit the full development of the discrimination

claims, in light of the President’s statements, undermines the legiti-

macy of the court system.

152

The legitimacy of court procedures and

allowing the respondent’s claims to be fully developed is significant,

given the manner in which court systems in the United States have

served as an instrument of discrimination against marginalized com-

munities. Justice Sotomayor’s adherence to procedure is grounded

in ensuring public confidence in the system, rather than ensuring

a particular outcome. When the rules have not been followed and the

outcome is against the litigant, it does not inspire public trust and

confidence that the court has reached the right result.

153

B. Wolf v. Cook County

In Wolf v. Cook County, the Administration petitioned the Su-

preme Court to overturn a preliminary injunction to enforce its regu-

lation changing the parameters of when a noncitizen under 8 U.S.C.

§ 1182(a)(4)(A) would be inadmissible based upon their likelihood of

becoming dependent on the state—becoming a public charge.

154

“This

new regulation . . . defines a ‘public charge’ as ‘an alien who receives

one or more designated public benefits for more than 12 months in

the aggregate within any 36-month period (such that, for instance,

receipt of two benefits in one month counts as two months).’”

155

The majority decision lifted the district court’s granting of a

preliminary injunction, allowing enforcement pending the disposi-

tion of the Government’s appeal in the Seventh Circuit.

156

It is not

typical for the Supreme Court to issue an opinion on an order granting

a preliminary injunction.

157

Justice Sotomayor wrote a dissenting

148. Regents of the Univ. of Cal., 140 S. Ct. at 1918.

149. See id.

150. Id. (citing Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575 (2019)).

151. See id. at 1926–29.

152. See id. at 1918–19.

153. See Sotomayor & Greenhouse, supra note 19, at 376.

154. See Wolf v. Cook Cnty., 140 S. Ct. 681, 681 (2020).

155. Id. at 681–82 (quoting 8 U.S.C. § 1182(a)(4)(A)).

156. See id. at 681.

157. See id.

114 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

opinion highlighting the procedural irregularity and the Administra-

tion’s reflexive use of petitioning the Court before cases are ripe for

judicial review.

158

Again, Justice Sotomayor’s dissent focused on strict adherence

to procedure.

159

She admonished the Court’s affirming the Adminis-

tration’s request for it to overturn two lower courts’ grant of a stay.

160

She cited this as “a now-familiar pattern”

161

and “‘th[e] exceptional

mechanism’ of stay relief ‘as a new normal.’”

162

In her dissent, speak-

ing to her colleagues, she encouraged the Supreme Court to remem-

ber the standard the government must meet in order to obtain a stay

and reminded the government that it cannot simply presume that

it will obtain the assent of five Justices on the legal issues.

163

The

standard is a higher standard when the government—or a party—

seeks to depart from the standard rules of appellate procedure.

164

In other cases, the Administration argued that Supreme Court

intervention was necessary where the district court issued nation-

wide injunctions.

165

This case can be distinguished because both the

district court and the Seventh Circuit issued injunctions that were

only applicable to the state of Illinois, not the entire country.

166

Justice Sotomayor called out the Administration in what is becom-

ing a familiar pattern of petitioning the Supreme Court before a

case is ripe for review:

Claiming one emergency after another, the Government has re-

cently sought stays in an unprecedented number of cases,

demanding immediate attention and consuming limited Court

resources in each. And with each successive application, of course,

its cries of urgency ring increasingly hollow. Indeed, its behavior

relating to the public-charge rule in particular shows how much

its own definition of irreparable harm has shifted. Having first

sought a stay in the New York cases based, in large part, on the

purported harm created by a nationwide injunction, it now dis-

claims that rationale and insists that the harm is its temporary

inability to enforce its goals in one State.

167

158. See id. at 682.

159. See id. at 682–83.

160. Wolf, 140 S. Ct. at 681–82.

161. Id. at 681.

162. Id. at 683 (citing Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3, 6 (2019)

(Sotomayor, J., dissenting from grant of stay)).

163. See id. at 683–84.

164. See id. at 683 (citing Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319,

1320 (1994)).

165. Id.

166. See Wolf, 140 S. Ct. at 682–83.

167. Id. at 683.

2020] DECONSTRUCTING INVISIBLE WALLS 115

Her dissent focused on how the failure to adhere to basic rules of

appellate procedure creates a “disparity in treatment [that] erodes

the fair and balanced decision-making process that this Court must

strive to protect.”

168

C. Barr v. East Bay Sanctuary Covenant

In July 2019, the Administration promulgated an interim rule,

8 C.F.R. § 208, restricting asylum applicants on the southern bor-

der.

169

The joint interim rule, 8 C.F.R. § 208, banned all asylum

seekers who enter or attempt to enter the United States across the

southern land border who transit through a safe third country in to

the United States.

170

The rule provided that a person in transit must

apply in the countries through which they transited.

171

Simulta-

neously, the Administration entered into Asylum Cooperation

Agreements with El Salvador (September 20, 2019),

172

Honduras

(September 21, 2019),

173

and Guatemala (July 26, 2019).

174

In Barr v. East Bay Sanctuary Covenant, legal and social ser-

vice organizations challenged the validity of the joint interim rule.

175

Before the Ninth Circuit heard arguments on the merits of the case,

the Administration petitioned the Supreme Court to issue a stay

pending appeal allowing the interim rule to go into effect.

176

The

Administration’s petition and the Court’s response were a departure

from normal procedure.

177

168. Id. at 684.

169. 8 C.F.R. § 208.13 (c)(4) (2019).

170. Id.

171. See id.

172. See Press Release, Joint Statement Between the U.S. Government and the Gov-

ernment of El Salvador, D

EP’T OF HOMELAND SEC. (Sept. 20, 2019), https://www.dhs.gov

/news/2019/09/20/joint-statement-between-us-government-and-government-el-salvador

[https://perma.cc/7G68-7TQ6].

173. See Agreement Between the Government of the United States of America and the

Government of the Republic of Honduras for Cooperation in the Examination of Pro-

tection Claims, U.S.-Hond., Sept. 25, 2019, T.I.A.S. No. 20-325; see also Press Release,

Joint Statement Between the U.S. Government and the Government of Honduras, D

EP’T

HOMELAND SEC. (Sept. 21, 2019), https://www.dhs.gov/news/2019/09/21/joint-state

ment-between-us-government-and-government-honduras [https://perma.cc/G2S7-N3N2].

174. See Agreement between the United States of America and Guatemala, U.S.-

Guat., July 26, 2019, T.I.A.S. No. 04-1229; see also Press Release, Joint Statement

between the U.S. Government and the Government of Guatemala, D

EP’T OF HOMELAND

SEC. (July 22, 2019), https://www.dhs.gov/news/2019/07/22/joint-statement-between-us

-government-and-government-guatemala [https://perma.cc/Q32G-B486].

175. See 8 C.F.R. § 208.30 (2019); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3,

3 (2019). On June 30, in Capital Area Immigrants’ Rights Coal. v. Trump, the district

court held that the third country agreements were invalid. See No. 1:19-cv-02117-TJK,

2019 WL 3436501 (D.D.C. filed June 30, 2020).

176. See Vladeck, supra note 12, at 143.

177. Id. at 130–31.

116 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

On September 11, 2019, the Supreme Court issued a stay lifting

the Ninth Circuit’s injunction halting the interim rule’s implemen-

tation.

178

The Supreme Court’s order allowed the executive branch’s

proposed rule to go into effect pending litigation.

179

Justice Sotomayor’s dissent, joined by Justice Ginsburg, was

highly unusual, as the Supreme Court typically does not issue opin-

ions when lifting a stay.

180

Her dissent followed a similar pattern,

given her repeated focus on procedural fairness.

181

The dissent made

two major points. First, the dissent highlighted the Administration’s

promulgation of a rule without following the standard rulemaking

procedures under the Administrative Procedures Act.

182

The dissent

cited to the district court’s opinion, where the court issued an in-

junction halting the enforcement of the government’s rule finding

that the government was unlikely to succeed in the merits of their

case.

183

Specifically, the district court found that the government did

not follow the two requisite steps for promulgating the transit ban

regulations under the Administrative Procedures Act (APA).

184

Agencies must first publish notice of the proposed rule in the

Federal Register and, second, there must be a public commenting

period.

185

During the public commenting period, people may submit

data, opinions or arguments, either written or orally.

186

The Admin-

istration did not follow these two steps.

187

Sotomayor admonished the Court for lifting the injunction.

188

allowing the regulation to go into effect, the Court dismantled dec-

ades of asylum procedures.

189

She noted that the implementation of

this policy had a disparate impact on “some of the most vulnerable

people in the Western Hemisphere—without affording the public a

chance to weigh in.”

190

178. See East Bay Sanctuary Covenant, 140 S. Ct. at 3.

179. See id.

180. Ian Millhiser, The Supreme Court’s Enigmatic “Shadow Docket,” Explained, V

(Aug. 11, 2020), https://www.vox.com/2020/8/11/21356913/supreme-court-shadow-docket

-jail-asylum-covid-immigrants-sonia-sotomayor-barnes-ahlman.

181. See East Bay Sanctuary Covenant, 140 S. Ct. at 4.

182. Id. at 4–5.

183. Id. at 5.

184. See id. at 4–5 (citing East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922,

947 (C.D. Cal. 2019)).

185. See id. at 4 (citing East Bay Sanctuary Covenant, 385 F. Supp. 3d at 947–51).

186. See id. at 4–5 (citing East Bay Sanctuary Covenant, 385 F. Supp. 3d at 947–51).

187. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. at 5–6 (citing East Bay

Sanctuary Covenant, 385 F. Supp. 3d at 947).

188. Id. at 4–6.

189. Id. at 5.

190. Id.

2020] DECONSTRUCTING INVISIBLE WALLS 117

Second, the dissent highlighted the Supreme Court’s acquiescence

to the Administration’s petitioning the Court before it properly pro-

ceeded through the court system.

191

By granting a stay, the Court simultaneously lags behind and

jumps ahead of the courts below. And in doing so, the Court side-

steps the ordinary judicial process to allow the Government to

implement a rule that bypassed the ordinary rulemaking pro-

cess. I fear that the Court’s precipitous action today risks under-

mining the interbranch governmental processes that encourage

deliberation, public participation, and transparency.

192

Here, Justice Sotomayor asserted the need to strictly adhere to

procedure.

193

In lifting the injunction, the Court—without issuing an

opinion—was essentially confirming strict deference to the executive

branch’s plenary power over immigration.

194

Since 2017, the Admin-

istration has increasingly petitioned the Supreme Court to bypass

district and circuit court nationwide injunctions prior to the case

proceeding through the lower courts.

195

The dissent forced the Court

to reconcile its decision with the longstanding practice of failing to rule

on a case prior to it properly proceeding through the lower courts.

196

She stated, “[u]nfortunately, it appears the Government has treated

this exceptional mechanism as a new normal. Historically, the Gov-

ernment has made this kind of request rarely; now it does so reflex-

ively.”

197

The core principle that emerged from this dissent is that the

Administration is not above the APA and that the Administration’s

use of the Supreme Court to resolve cases before they go through the

proper appellate procedures to the Supreme Court is unacceptable.

198

CONCLUSION

Justice Sotomayor’s immigration dissents in cases challenging

executive actions serve three important functions: (1) signal the ways

in which immigration exceptionalism has permitted the abandonment

191. Id.

192. Id.

193. See East Bay Sanctuary Covenant, 140 S. Ct. at 4–5.

194. Id.

195. See Vladeck, supra note 12, at 124, 134.

196. See East Bay Sanctuary Covenant, 140 S. Ct. at

5 (“By granting a stay, the Court

simultaneously lags behind and jumps ahead of the courts below. And in doing so, the

Court sidesteps the ordinary judicial process to allow the Government to implement a

rule that bypassed the ordinary rulemaking process. I fear that the Court’s precipitous

action today risks undermining the interbranch governmental processes that encourage

deliberation, public participation, and transparency.”).

197. Id. at 6.

198. See id. at 4–5.

118 WM. & MARY J. RACE, GENDER & SOC. JUST. [Vol. 27:095

of adherence to the rule of law;

199

(2) reinforce the need for congres-

sional reform;

200

and (3) signal to marginalized communities that

the pretext of regulating immigration and national security do not

provide cover for the Administration’s racist and xenophobic immi-

gration policies.

201

Historically, Supreme Court dissents in civil rights cases have

served the important function of holding government institutions

accountable for blatant discrimination and legalized segregation.

202

Public commentators have likened Justice Sotomayor’s dissents to

the dissents in 1960s civil rights cases.

203

Noting that her dissent in

Trump v. Hawaii

would be like recounting George Wallace’s comments in 1963

about segregation but finding his refusal to allow African Ameri-

cans into an all-white school was based on some legitimate edu-

cational rationale. If Trump shouted from the rooftops, “Of course

I did it to get Muslims!” the majority would no doubt find reason

to disregard the confession. (And isn’t that what he did over and

over again—confess to anti-Muslim bigotry?)

204

In the Supreme Court’s history, the most memorable dissents

were written when Justices highlighted the incongruence between

systems of legalized segregation and constitutional norms.

205

The

dissents later would become the prevailing norms for affirming the

199. See Ginsburg, supra note 25, at 4 (“A dissent in a Court of last resort is an appeal

. . . to the intelligence of a future day, when a later decision may possibly correct the

error into which the dissenting judge believes the court to have been betrayed.”).

200. See id. at 6–7 (citing as example Justice Ginsburg’s own dissent in Ledbetter v.

Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)).

201. See id. at 4–5. Justice Ginsburg, in a lecture, creates two main typologies for

dissenting opinions: (1) intelligence of a future day—“A dissent in a Court of last resort

is an appeal . . . to the intelligence of a future day, when a later decision may possibly

correct the error into which the dissenting judge believes the court to have been

betrayed”; and (2) aims to attract immediate public attention and, thereby, to propel leg-

islative change. Id. at 4, 6. I add a third function to her typologies—the public function—

to those whose rights are taken away by the majority, and the Justice signals there is

someone listening. See also Meares & Tyler, supra note 21, at 539 (“Justice [Sotomayor]

has her finger on the pulse of the American public and hence has a good sense of how to

create and maintain legitimacy for the Court and its decisions.”).

202. See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 564 (1857) (Curtis, J., dissenting),

superseded by constitutional amendment, U.S. C

ONST. amend. XIV; The Civil Rights Cases,

109 U.S. 3, 26 (1883) (Harlan, J., dissenting); Plessy v. Ferguson, 163 U.S. 537, 552

(1896) (Curtis, J., dissenting), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).

203. See Jennifer Rubin, Sotomayor’s Searing Dissent is Worth Savoring, W

ASH.POST

(June 27, 2018, 9:15 AM), https://www.washingtonpost.com/blogs/right-turn/wp/2018/06

/27/sotomayors-searing-dissent-is-worth-savoring [http://perma.cc/4X6B-RDY6].

204. Id.

205. See Damon Keith, One Hundred Years after Plessy v. Ferguson, 65 U.

IN.L.REV.

853, 855–56 (1997).

2020] DECONSTRUCTING INVISIBLE WALLS 119

right of African Americans to equal protection under the law.

206

His-

toric Supreme Court dissents were written in Dred Scott v. Sandford

(1857),

207

Civil Rights Cases (1883),

208

and Plessy v. Ferguson (1896).

209

In these cases, the majority refused to acknowledge the humanity

of African Americans, which was an official legal endorsement of

racial segregation and discrimination against African Americans.

210

Like the infamous civil rights dissents, Justice Sotomayor calls

attention to the ways in which immigration laws have operated in

a vacuum of exceptionalism that has resulted in the abrogation of

immigrant’s fundamental constitutional rights.

211

She highlights

with clarity how the adherence to rule of law and upholding immi-

grant’s fundamental rights within the Constitution do not permit

this Administration—in the name of sovereignty and national

security—to act with impunity when racist and xenophobic state-

ments provide the context for their policies.

212

Recognizing the power

of dissenting opinions herself, Justice Sotomayor highlighted the

similarity between her dissent in Trump v. Hawaii and Justice

Murphy’s dissent in Korematsu.

213

Both dissents called attention to

national security justifying immigration policies that are cover for

discriminatory animus.

214

Justice Sotomayor’s dissents are written in a context where the

President has sought to enforce executive actions that are connected

to discriminatory and xenophobic statements during his campaign

and while in office.

215

Her dissents demand strict adherence to proce-

dure, while forcing the Court to recognize the discriminatory and

xenophobic rhetoric that has driven its immigration policy agenda.

Accordingly, her dissents provide wisdom to a future day where im-

migration authority does not reign supreme in the face of blatant

discriminatory and xenophobic immigration laws and policies.

206. See Brook Thomas, Plessy v. Ferguson and the Literary Imagination, 9 CARDOZO

STUD.L.&LITERATURE 45, 60–62 (1997).

207. Dred Scott v. Sandford, 60 U.S. 393, 564 (1857), (Curtis, J., dissenting), superseded

by constitutional amendment, U.S. C

ONST. amend. XIV.

208. The Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting).

209. Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Curtis, J., dissenting), overruled by

Brown v. Bd. of Educ., 347 U.S. 483 (1954).

210. Id. at 543, 548, 551; Civil Rights Cases, 109 U.S. at 24–25; Dred Scott, 60 U.S. at

395–96, 404–05.

211. See Trump v. Hawaii, 138 S. Ct. 2392, 2433 (2018).

212. Id. at 2440–41.

213. Id. at 2392, 2447–48.

214. Id.

215. See, e.g., Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1917 (2020) (Sotomayor, J., dissenting).