Wait, Can He Actually Do That? Part 18: Trump's Racist Refugee Policy is Unconstitutional

As Mark Kende explained here on the blog on Monday, President Trump's decision to allow entry to the United States of white South Africans as refugees--even as it denies such admission to thousands of Black and brown people facing persecution throughout the world--can only be described as racist. That's not to say that Trump admits the racism. On Monday, he said this:

Farmers are being killed. They happen to be white. Whether they are white or Black makes no difference to me. White farmers are being brutally killed and the land is being confiscated in South Africa.

It's true that most of the farmers who have been killed in clashes over land are white. But 45 percent (101 out of 225) of them are Black. Yet none of the new refugees is Black, and the executive order Trump signed authorizing the resettlement program is expressly for "Afrikaners" exclusively. Afrikaners are descended mostly from Dutch settlers and are white. Meanwhile, the South African land redistribution law to which the Trump policy ostensibly responds is formally race-neutral--although, obviously, most of the land to be redistributed is owned by white South Africans, because, in virtue of the country's history of colonialism and apartheid, they own most of the land.

None of the foregoing should be read to endorse murder or other acts of violence against anyone. Nor should it be read to endorse the new land redistribution law. Land acquired generations ago through manifestly unjust means can nonetheless create title that ought to be disturbed only through a careful process that balances private property interests against the needs of society more broadly. Such programs often go very badly, with a more equitable distribution of land resulting in serious economic harm, as occurred in Zimbabwe. I am not sufficiently expert in the law, economics, or politics of South Africa to have an informed opinion about whether the land reform law is fair, sensible, or even constitutional.

What I can say is that, even assuming that the Afrikaners newly admitted to the U.S. have a plausible claim to be refugees, Trump's singling them out for admission while Black and brown people around the globe face equal and greater threats of persecution is obviously a product of racism. The Trump administration's efforts at a race-neutral explanation actually underscore the racism.

In addition to Trump's false claim that the South Africans "happen to be white," Deputy Secretary of State Christopher Landau defended the selectivity of Trump's sympathy for South African but not other refugees by claiming that all along the halting of refugee admissions was subject to exceptions for those whose resettlement was in the U.S. interest, as when the refugees “could be assimilated easily into our country.” Huh. And why, one wonders, do Landau and Trump think that white South Africans, almost uniquely among the asylum seekers of the world, are assimilable? I'm sure it has nothing to do with the fact that they "happen to be white."

Meanwhile, it should go without saying--but I'll say anyway--that U.S. law does not make refugee status turn on assimilability. One is entitled to such status based on "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . ." That definition is found in 8 U.S.C. § 1101(a)(42). It closely tracks the definition in the 1951 Refugee Convention. The U.S. didn't sign or ratify the 1951 Convention, but it did sign and ratify the 1967 Protocol thereto, which by its terms incorporates (and extends) the Convention. Thus, under both domestic and international law, the U.S. has no legal basis for denying refugee eligibility based on assimilability or, what it is actually a cover for: race.

Conversely, the special status granted the Afrikaners appears to violate the Refugee Act, which requires consultation with Congress and explanation of priorities. Nor is it evident that the particular Afrikaners who were admitted were subject to the standard screening for refugee admission and resettlement, nor even that they were asked to demonstrate that they had the requisite fear of persecution on grounds that make them eligible for refugee status. Instead, it appears that, as with so many other Trump executive orders, the Afrikaner refugee order simply ignored existing legal requirements.

In any event, even if Trump had dotted his i's and crossed his t's in admitting the Afrikaners, the racially discriminatory refugee policy would still be illegal because it's unconstitutional. The equal protection component of the Fifth Amendment's Due Process Clause forbids invidious discrimination, including, especially, discrimination based on race (unless the race discrimination satisfies strict scrutiny). There is no "immigration exception" to the prohibition. So, the answer to the question "can he actually do that?" is, as it almost invariably is in this series, no.

Can Trump nonetheless get away with it? That's a different question.

A potential obstacle to judicial invalidation is finding a plaintiff who could bring a challenge. The most straightforward challenge would be by a non-white non-citizen who has applied for refugee status but is blocked by the Trump administration's general policy suspending refugee admissions. Alternatively, a citizen who is a close relative of a prospective refugee might have standing to bring a case claiming that the exclusion harms them.

Plaintiffs fitting both descriptions are part of a lawsuit that led to a district court preliminary injunction against the broad suspension. A Ninth Circuit panel partially stayed the preliminary injunction, allowing the administration to continue to refuse to process new applications but leaving in place the injunction as applied to persons who had already been cleared for admission before Trump took office. Perhaps the plaintiffs in that case can simply amend their complaint to add a claim that the racial selectivity of the exception for Afrikaners violates equal protection. Doing that might even get around the part of the Ninth Circuit ruling that allowed the administration to refuse to grant refugee status prospectively.

But wait. What kind of relief would be available? Federal law grants to the Attorney General discretion whether to grant refugee status to someone who qualifies. An executive determination that someone is ineligible is judicially reviewable but, as illustrated by the 1987 SCOTUS ruling in INS v. Cardoza-Fonseca, successful appeal entitles the applicant only to the exercise of that discretion, not to refugee status itself.

Is that an insuperable obstacle, given the high likelihood that the Trump administration would simply apply its discretion to deny all claims other than those by white South Africans? In a word, no.

Even where the law confers discretion, that discretion cannot be exercised in a racially discriminatory manner. That doesn't mean that a court would be able to order the Attorney General to grant refugee status to non-Afrikaners. It does mean that a court could order the Attorney General either to admit and resettle such non-Afriankers who are relevantly similarly situated to the Afrikaners or not to admit (or revoke refugee status) for the Afrikaners.

Does that sound harsh? Sure. But it's pretty much the remedy the Court approved in 2017 in Sessions v. Morales-Santana in response to a successful sex discrimination claim. Ordinarily, Justice Ginsburg explained for the majority, when a benefit is being distributed in violation of equal protection, the remedy is to extend the benefit to those to whom it is being denied. However, where the law precludes judicial extension, withholding of the benefit from the favored class is the appropriate remedy.

To be clear, I'm not predicting that the courts will invalidate the Trump administration's racist immigration policy. I am saying that the policy is illegal and at least potentially subject to invalidation.

-- Michael C. Dorf

Find all the essays in the Wait, Can He Actually Do That? series here.