S. September 11, The Trump Administration and the Rights of Non-Citizens

This course will examine the rights of non-citizens after September 11 and during the Trump Administration. Both periods involve sweeping immigration initiatives in which the government relied on national security rationales to justify the initiatives.

The first half of the class will focus on the period after September 11. We will examine such issues as: (1) the legality of holding secret immigration hearings and the withholding the names of non-citizens arrested and detained in connection with the September 11 investigation, (2) the lawfulness of the various means used by the Justice Department in the wake of September 11 to detain non-citizens charged with immigration offenses, (3) whether the government selectively applied its post-September 11 policies to non-citizens on the basis of race, religion, ethnicity or nationality, and if so, whether such selective application is unlawful in the wake of 9-11, and (4) the legality of various surveillance methods used by the government after 9-11.

The second half will focus on several high-profile initiatives during the Trump Administration adopted in the name of national security, including: (1) the travel ban, (2) the separation of parents and children at the border, (3) the asylum ban, and (4) the policy requiring asylum seekers to wait in Mexico for their hearings.

The primary focus of the course will be a straight academic assessment of the legality of the government’s policies. The class, however, will also explore the issues from a variety of other perspectives. One perspective will be historical. Among other things, we will examine whether the government has curtailed the rights of non-citizens to a greater extent than in previous periods in which the country’s national security was threatened and whether the role of the courts, lawyers and the media during such periods has changed over time. We will also examine whether the government’s national security rationales differed after September 11 and during the current Administration.

In addition, because many of the issues are recent or even ongoing, the class will also explore them from the strategic perspective of the lawyers and litigants involved in the major September 11 cases. Because Professor Gelernt litigated a number of the 9-11 cases, and is currently litigating a number of the ongoing Trump Administration cases, he will at times provide his perspective on the underlying strategic considerations.