HH: Joined now by the Smart Guys. From Chapman University Law School, Professor John Eastman, from Duke University Law School, Professor Erwin Chemerinsky, John from the right, Erwin from the left, welcome, gentlemen. I have a very basic question as we go about this immigration reform. First, let’s get your reactions to it, Erwin Chemerinsky, the draft bill.

EC: I think it’s a good compromise. I think any solution is going to need to be a compromise. They weren’t able to do so last session of Congress. I’m thrilled to see that the Senate’s been able to work something out with the White House that might have a chance of going through.

HH: John Eastman?

JE: I think it’s a terrible bill. I think it’s ten times worse than the ’86 amnesty provisions, which are nearly identical to the path to citizenship provisions in this bill. The reason I think it’s terrible is the predictions, the dire predictions, the world is going to end predictions that were made back in 1986 actually turned out to be true. It was said at the time that if you find a path to legalization for people that had come here illegally, it would be an invitation for an even more massive illegal migration in subsequent years. And over the last twenty years, an additional twelve to twenty million people have taken advantage of that hope, that in fact we would be forced to give another amnesty. And we ought not to be stupid enough to think that this one won’t be an invitation to the next fifty million.

HH: Now Erwin, you want to respond to that?

EC: I do. The reality is people who are from more disadvantaged countries are going to come here illegally, in any way they can, whether amnesty is granted or amnesty is not granted. The reality is there is no evidence that more people will come here with amnesty than without amnesty. They’re going to come if they can. It’s to their advantage.

JE: That’s not true. There is great evidence that if you enforce, for example, in the interior, with employer sanctions, the job market dries up, and the draw that is right now being the huge draw for illegal immigration, goes away. And even a couple of showcase employer raids have created huge disruptions in the incentive structure. The problem is that we have never tried an enforcement policy that actually works. And this has now become a much bigger issue than simply blocking illegal immigration for the millions and millions of people who would prefer to be in the United States rather than their own countries. We have created a border that is a sieve for terrorists, and they know that they don’t need to fly into the ports where high security is. They can just walk across our border. And there are thousands of people that have done so, ready to commit an act of terrorism in the United States. We have got to protect our sovereignty here if we’re going to survive. And this bill is exactly the wrong thing to do.

HH: Erwin, go ahead.

EC: John, you just shifted position. We were starting to talk about will amnesty draw more people here than we would have trying to come here without that. And your response was we need to impose sanctions on employers, and we need to enforce the border. I think all of that is true, but that doesn’t go to the question whether amnesty is likely to bring more people here. I think your point is exactly why amnesty won’t make any difference in that regard. Those who can come here, those who want to come here will do so whether amnesty is granted now or not.

HH: There have been five articles by the San Antonio Express News beginning Sunday through today on the passage into the country, and attempted passage into the country of illegal aliens from countries of special concern. These are Middle Eastern countries as well as some countries in Central Asia, and other countries with jihadist networks. It is estimated in this article that between 40,000 and 60,000 such illegals have entered the country in the last years since 9/11, only 5,700 stopped, about half at the Canada border, half at the Mexico border. My question is, as a matter of Constitutional law, Erwin Chemerinsky, could this new legislation distinguish between illegal aliens in the country from Spanish speaking countries, and those from countries of special interest, denying the latter the regularization that the former would receive?

EC: In all likelihood, yes. Congress has always distinguished, in terms of immigration policy, based on the country of origin, allowing individuals from one country, but not from another. So I think Congress’ plenary power of immigration could probably do that. Now what makes this different and a little bit more tricky is what we’d be distinguishing them on the bases of could be ethnicity, and so there could be a challenge. But my bottom line is yes, I think Congress could do that if it wanted to.

HH: Almost certainly ethnicity, and possibly religion, John Eastman. Do you agree with Erwin’s analysis?

JE: You know, I have to think about the religion. To my knowledge, the Court hasn’t addressed that issue. But certainly national origin, and probably ethnicity, I do agree with Erwin.

HH: And given that, does it make sense to you, John Eastman, to make such a distinction between what is by and large an economic, though there are some criminal elements in the Spanish speaking, it’s a 90-10 versus a population of illegals from these jihadist countries, which is also probably 90-10, but which we can’t really absorb even any terrorists from. What do you make of that distinction?

JE: Well, I think the distinction on the homeland security front is important. But I would not accept the distinction for others as well. One of the problems we’re facing with Spanish speaking immigrants, for example, is I think this is one of the first times in history where access to a wealthy country by a relatively poor country has been so easy, and the lack of assimilation that’s occurring because of the facility of cross-border movement, we’re actually discouraging assimilation, and making it harder to keep our country…so I would not draw that distinction as a matter of policy. I would not allow for an amnesty provision on either front. But I think the distinction is Constitutional.

HH: Erwin Chemerinsky, there is provision in the law, it’s very difficult to find, for judgments about whether or not people are gang members, even without conviction of any kind of criminal offense, or positive proof of gang membership, sort of a gut check. Do you find troubling that provision?

EC: Yes. Now again, we’re not talking about here the kind of due process that’s required in order to convict somebody for being a gang member. What we’re talking about here is a place where people have no Constitutional rights when it comes to becoming a citizen. On the other hand, I would never want it to be that mere suspicion or hints of association could be a matter of denying somebody a benefit. So I’d want to know what kind of evidence and procedures are there, and I’d want to make sure that it’s fair. It doesn’t have to be a full trial, but it has to be a fair procedure.

HH: But is that a policy or a Constitutional issue with you?

EC: I’m sure it’s a policy issue. I think it’s hard to make anything a Constitutional issue, because individuals don’t have a right under the Constitution to get amnesty, and I think Congress is going to have broad latitude to condition the amnesty as it chooses to do so.

HH: John Eastman, could the Congress condition the granting of Z visas on the renunciation of the American citizenship of the children of the Z immigrant holders?

JE: Well, if they accept my position on birth right citizenship, then yes, because they’re not renouncing…

HH: If they didn’t….

JE: Yeah, then I think that’s problematic. Boy, that one I’ve got to think through, Hugh. So that may well fun afoul of the unconstitutional conditions doctrine. If the children have a Constitutional right based on birth to be citizens, to say that we’re only going to extend this government program to you if you renounce…if you not take only actions for yourselves, but also renounce the citizenship that your…

HH: How about if you agree not to have children when you’re in the country, and then violate that agreement as a condition of your entrance?

JE: Yeah, you know, that’s a tough call. You know, you’re talking about looking at existing precedent. You’re talking about the right to have children being pre-fundamental. And to say that we have to condition that right away as a condition on the amnesty…

HH: We’ll come back.

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HH: Erwin, when we went to break, I was talking with John about what could and could not be a condition upon Z visa recipients. Your reaction to that conversation?

EC: Well, I think it’s clear that you can’t say to somebody that they can be admitted to this country only on a promise they won’t have children. There’s a fundamental right to procreate. Likewise, you can’t condition somebody’s entry into the country, or their ability to get citizenship on their renouncing the citizenship that the Constitution gives to their children. This is, as John said, an unconstitutional condition, a benefit, even one the government doesn’t have to grant, can’t be conditioned on somebody giving up their Constitutional rights.

HH: While I agree with that once they’re here, and obviously once the child is born, why not make it a condition of deportation if you become pregnant? Would that be okay?

EC: No. I think no court in the country would uphold that, because then what you’re saying to somebody is that you only get to stay in the country if you give up the fundamental right to have children. Not only do I think it’s unconstitutional, it’s inhumane, and would be horrible in terms of public relations to say to people that you’re going to take away their ability to have children in order to be able to say in the country? Surely you don’t want that to be the message we send to the world.

HH: John Eastman?

JE: Let me switch it. We do have a policy of not granting visitor visas, or student visas, to women who are pregnant, or late term in their pregnancy, so that the child isn’t born here, and we create citizens by the view of birth right citizenship that many hold to the Constitution. But I think, you know, I’m leaning toward Erwin on this one, Hugh. I think the reverse of that is not equally true.

HH: No, I agree with all that. I just wanted it out there for people to read. Now what I want to get to is what due process rights are going to attach to Z visa holders? Because this is the rub. We were talking earlier with Senator Kyl and Michael Chertoff on this program, and they both agreed that the triggers might be long in being pulled, and they’re going to be walking around with probationary non-sort of pre-cursor Z visas. Under what circumstances can those be pulled once they’re given, Erwin, and someone has status in this country? Do they have any rights to due process with that probationary Z visa?

EC: The simple answer is no. They would have the right to due process that the statute gives them. Now I’ve oversimplified a little bit, because if somebody has an expectation once they’re here, then there is a liberty interest, and there has to be some due process given. It can’t be a summary deportation, but it’s not a full in-court hearing, either.

HH: John, did you hear that trap door just opening?

JE: I did…

HH: Yeah, oh boy did I hear that.

JE: Oh, boy, and this is the problem with what Senator Kyl and others have signed onto, that this was a hot issue fifteen, twenty years ago. When I give a property interest, or something that looks like a property interest, an entitlement, and I define the scope of this entitlement by a statute that includes certain limited due process protections, not the full set of protections that we would give to traditional property before I take it away from you, the Court said, severed the property interest that was granted by the statute from the procedures that went along with it, and now created a property interest standing alone, and said all of the due process protections of the 5^th Amendment or the 14^th Amendment apply. And that means that once you gave an interest to these people, the limited Z visa or what have you, the Court would determine what process was due, not the statute.

HH: And Erwin, is that an appropriate statement of the law?

EC: Yes, except I don’t understand why you’re afraid of due process. We’re not talking about, all of us agree we’re not talking about a court trial. We’re talking about a deportation hearing.

HH: Erwin, because there are 20 million of them.

EC: But we’re not needing to deport 20 million of them.

HH: No, but if the triggers never get pulled, and people start saying okay, it didn’t work, we don’t have border patrol, we don’t have the fence, we can’t stop it, it is the magnet, we’re going to have to send people home, if that day ever comes, I don’t think we can send anyone with a probationary visa home, absent a procedure.

EC: But what you’re saying is that the procedure would be so onerous as this is undesirable. And I’m saying I don’t understand why you can’t have what’s usually a very simple procedure in these instances. We’re not talking about an elaborate, in-court trial.

HH: Right now, all you have to do if you find an illegal alien, if they’re from Mexico, is drive them to the border and put them on the other side, right?

EC: Well, if you’ve established that they’re undocumented, sure.

HH: Yeah. And so, with a Z visa, you can’t do that anymore. Again, I’ll ask you both to hang on. I think this is very important, because the day this bill passes, the day it passes, probationary precursor visas go out to up to 20 million people. And the impact on those people’s status is it makes them instantly employable, and they cannot be deported in the terms of the law.

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HH: And now we get down to brass tacks. What happens the day after the bill passes? And gentlemen, the triggers are in the bill, but section 601, treatment of applicants, reads this way. I want to make sure you hear it. “An alien who files application for Z non-immigrant status shall upon submission of any evidence required under paragraphs F and G, and after the Secretary has conducted appropriate background checks to include name and fingerprint checks, that have not by the end of the next business day produced information rendering the applicant ineligible, shall be A) granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application, B) may, in the Secretary’s discretion receive advance permission to reenter the United States, C) may not be detained for immigration purposes determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alien is determined to be ineligible for Z non-immigration status.” Erwin, what rights does that endow upon, give to the Z applicant?

EC: I think it gives them exactly the rights that you’ve described, and I think it would require some form of due process before taking that status away.

HH: And what would that look like to you? What would you argue under a Matthews V. Eldridge test? That’s a huge entitlement. That’s a big deal, Erwin. You can’t just say we don’t think you’re here.

EC: Well, you’re right. You can’t just say it arbitrarily, and I think that’s a good thing. And you’re also right in terms of what you referred to as the leading Supreme Court case, Matthews V. Eldridge, says that in deciding what procedures are requires, a court’s to balance the importance of the interest of the individual, the ability of hearings to lead to more accurate decisions, and also the government’s interest, including administrative efficiency. I think courts would approve some form of deportation hearing that is relatively minimal in terms of procedure, but there has to be some procedure, and I think that’s a good thing, not a bad thing.

HH: So John Eastman, am I write in concluding that today, millions of illegal aliens in this country who are not owed a hearing, simply not owed a hearing, if we want to pick them up, and we drive them back, we catch them at the border, we take them back over the border, would after this be owed a hearing?

JE: Yes, and the scope of the hearing would not need to be a full-fledged trial that we have for other kind of loss of interest under the Constitution. But it would not be defined by what the statute sets out with minimal things. It will be defined by the courts, and it will be balanced, as Erwin has said, by the relative weight to be given to the interest, and the government’s need in efficiency. And the courts have opened the door for things like well, immigration law and eligibility is a very complicated thing. Will the courts require that in order for there to be fair due process, then in fact every one of these Z visa holders be afforded an attorney paid for by taxpayers before they can be deported? That’s certainly within the realm of possibility. Will there be a right to an appeal? And a stay of the lower court’s judgment before the appeal, or the hearing officer’s judgment before the appeal runs, given how significant the weight is if they’re going to be returned to a home country that is poor, and may be lots of claims of political persecution for having come here in the first place, or what have you. All of these things will now be decided by the courts for everyone, and it will be decided the day after this legislation takes effect. And you’re absolutely right, Hugh, to focus on it. It won’t wait until those so-called trigger events happen. This begins prior to the triggers, and will stay in place whether the triggers ever materialize or not.

HH: And I’m not trying to be alarmist, Erwin. I just think as expecting good lawyers, as the community of lawyers are on behalf of people not in the country legally over the years have become, they will seize on 601H, subparagraphs 1C, and say they have to be determined to be ineligible for Z non-immigrant status. We can’t even make that conclusion until the regulations for Z non-immigrant status are produced and ratified by a court. And so I think the entire illegal population becomes non-deportable the day after the law passes for a long period of time.

EC: I don’t think that’s right at all. In fact, courts have always said for non-citizens, there is the ability to deport without the need for full trial procedures. At the very least, you could use deportation procedures already in existence. I think what you’re doing is trying to use a procedural argument to hide the substantive disagreement. Where we really disagree is substantively. Is it a good thing to give some form of amnesty to those who are illegally in the United States? I would say yes, you would say no. If one believes yes, then it’s easy to create procedures that aren’t burdensome to do so. I don’t think our disagreement is really over procedures. It’s over substance.

HH: John Eastman?

JE: You know, at bottom, that’s right. This is a fundamental disagreement about the substance. But it’s the procedure that is going to decide the substantive question, that it’s going to so color the substantive question that we will have, in fact, granted amnesty on what’s supposed to be a compromise bill where that remains an open question, depending on whether the triggers get hit.

HH: Let me ask you both as well about a new provision that is going to kick in that says it’s going to be illegal to defraud in any way an illegal alien when it comes to their practice standards, et cetera. It’s section 1545. “Any person who knowingly executes a scheme in connection with any matter that is authorized by the federal immigration laws to defraud any person, or obtain or receive money, or anything else of value from any person by means of false or fraudulent pretenses, representations or promises, shall be fined under this title, imprisoned not more than 15 years, or both.” This is a little inside baseball. Doesn’t this put a new burden on immigration clinics operated by law schools around the country, Erwin?

EC: No, I don’t think so, because there’s an intent requirement for fraud, and I’m against fraud, and the reality is that especially undocumented aliens are very vulnerable, and this is just trying to protect them. I don’t think law school clinics have anything to worry about.

HH: Not just fraud, though. It says promises. It says promises or encouragements, John Eastman. You’re soon going to have to supervise one of these clinics. Does that alarm you at all?

JE: If the letter of it were applied as it’s written, then yes. But one of the problems with the ’86 bill, with the mid-90’s bills, is that all the enforcement things that go along, whether they’re in favor of the immigrant or in favor of enforcement, tend not to come out as written, and as expected.

HH: Erwin Chemerinsky, John Eastman, fascinating speculations. Thanks to the Smart Guys. We’ll be talking a lot about this bill once the amendments are in.

End of interview.