I try to make my classes relevant. Donald Trump is helping me do that this year big time.
Today we made an unusual connection to President Trump’s now famous (infamous?) executive order about immigration. The one that’s all over world news? Yeah that one. We connected that executive order to the Dred Scott decision from 1857.
Yes, really — read on 🙂
Today in class we watched the video of the hearing conducted last Friday by a Federal Judge in Washington. This is a relevant hearing to watch because this is the judge who granted the Temporary Restraining Order (TRO) against President Trump’s immigration ban. This the TRO that President Trump says is endangering national security (but many experts say the opposite — that the travel ban itself is endangering national security) (welcome to 2017).
In the video clip, the judge in Washington asked the parties about something called “standing.”
I asked my students to write down the word “standing” in their learning journals, and I told them that “standing” in a legal sense basically means the right to sue because you have been harmed.
The state of WA was not directly harmed by this travel ban, so the Trump administration claims that WA lacks standing.
There’s a doctrine called “parens patriae” that says WA can take care of its citizens and sue on their behalf, thus giving the state standing to sue.
The state of WA also argued that its state universities are being harmed because they are losing tuition money because students from the seven countries mentioned in the travel ban now can’t come to the US to study.
So now my students know about “standing,” which is kind of an abstract concept — but I’m glad they have heard of it.
But then it occurred to me during my second period class that we actually HAVE learned about standing before. And this is what makes studying history cool. It helps you make connections and better understand your world.
In fact, we learned about standing last year, when we talked about the Dred Scott case.
Cliff’s Notes version of the case:
Dred Scott said “I should be free because my master took me to free territory and I lived there for a while.”
The Supreme Court said “not only are you not free, but you can’t even bring a lawsuit. You have no standing because you are not a citizen. And you can’t be a citizen because you are black.”
Check Wikipedia if you don’t believe me:
Dred Scott v. Sandford, 60 U.S. 393 (1857), also known simply as the Dred Scott case, was a landmark decision by the United States Supreme Court on US labor law and constitutional law. It held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves”, whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court…
That’s specifically why the 14th Amendment was ratified — to overturn Dred Scott and make it clear that anyone born in the US (or later naturalized) is a citizen.
So here’s another interesting part — and this is a question the judge asked during the hearing and that I asked my students to write down — “Do refugees or visa holders that have never physically entered the country have equal protection rights under the Constitution?”
This is a big deal question.
Let’s do a close textual analysis of the 14th Amendment (which seems pretty relevant these days):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So if I am a refugee, am I “within the jurisdiction” of the US? If I have secured a visa to come to the US, or have at least started the vetting process, does that make me “within the jurisdiction” of the US?
If not, then I can’t make an equal protection claim.
By contrast, the “due process” part applies to any person — it does not say “within its jurisdiction” — so would that cover refugees?
This is an interesting question. Many of my students followed this discussion especially closely because this is a real-life issue that is changing the lives of refugees and people coming to the US from the seven previously banned countries.
And we will see soon (likely later today or tomorrow) what the Ninth Circuit says about these questions — or at least, as a preliminary matter, whether the travel ban can come back into effect (that executive order is currently “on hold” thanks to the TRO from Washington state).
It doesn’t get much more relevant than that!