International Law and Immigration

Ca. Int'l Law Journal VOL. 25, NO. 1, FALL 2017


As we enter in the early months of 2018, we can look back on 2017 as a year in which principles of international law and immigration have been at the forefront of political debate and legal controversy in the United States. Our continued participation in multilateral treaties on subjects ranging from trade to mutual defense and to climate change has been called into question. Governments and courts wrestle over the nature and appropriate scope of the extraterritorial effects of U.S. laws; the push for harmonization of the U.S. legal and regulatory system with those of its foreign counterparts has now come into question. Whether the prior, but careful, openness of the United States to refugees should continue—or whether those charged with enforcing our immigration laws can or should make distinctions in their enforcement, such as exempting those without documentation who have been in the United States since they are children—is now front and center. Finally, there is the unmistakable rise of China as a Great Power, presenting new challenges and new opportunities for the United States. Ultimately on all of these issues, it is not just the Federal Government but states such as California that will have a role to play in our federalist system. The articles published in this issue are a down payment on what will be an ongoing dialogue of the Journal in 2018 and beyond on these issues with the members of the International Law Section, with our foreign bar professors, with other Sections of the soon-to-be California Lawyers Association, and with other players in the international and immigration spaces.

The first article, entitled "The ‘Travel Ban’ and the 9th Circuit Holding in State of Washington v. Trump" by Joshua M. Surowitz (of the International Law Section’s Executive Committee), Eric P. Husby, and Raquel S. Vasquez takes an in-depth snapshot of an early decision in the ongoing litigation wars over whether the President has untrammeled authority to restrict travel into this Nation on ostensible national security grounds. The predictions of this article as to the need for the President to secure the consent of Congress or of the courts to such wide assertions of authority in the immigration space have seem to be borne out by later events.

The second article, entitled "Discrimination against Refugees: The Limits of Presidential Authority under International law" by Richard Bainter of the International Law Section’s Executive Committee, discusses how international law as expressed through various treaties’ obligations may provide a further constraint on the actions of this Administration. This article not only sets out how refugees in the United States may have rights in addition to those guaranteed by the Constitution, or immigration law, but also signals the continued importance of compliance with international treaty obligations as part of the rule of law.

The third article, entitled "The Don of a New Era" by Saskia Rieto and Anna Sayre, discusses the perceived impact of the new Administration’s policies on sanctions and export controls involving a broad range of countries, including Russia, Iran, and China. What can be distilled from this incredible tour-de-force of the viewpoints of different Administration officials and the actions of the Administration to date is that the rhetoric may not match the actions. Furthermore, what may still be an outside force to be reckoned with is Congress itself: on Russia, this article discusses how Congress has tightened sanctions much to the displeasure of the Administration—and it remains to be seen if the Administration will acquiesce as far as Russia is concerned) while on Iran, the Administration has punted the future of the Joint Comprehensive Plan of Action, discussed in this article, to Congress itself. 2018 will have an interesting story to tell on the separation of powers in this space and on whether the actions taken may catch up with the rhetoric.

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