Josh Blackman:
The legality of President Trump’s executive order on immigration depends in large measure on the interplay between two statutes: 8 U.S.C. s. 1182(f) and 8 U.S.C. s 1152(a)(1). In this post I will discuss whether the order is within the authority delegated by Congress. (I do not discuss the constitutional issues here).
8 U.S.C. § 1182(f)
The government’s statutory case hinges primarily on 8 U.S.C. § 1182(f), which provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
A few important points about the text. First, the provision affects “the entry of any aliens.” During debates about the executive order, pundits have conflated two issues: the granting of visas and the decision to allow someone to enter the United States. These are distinct questions. Even if an alien arrives at an airport with a valid visa, he may not be permitted entry to the United States. For example, if a person shows up at a border checkpoint, and exhibits symptoms of a communicable disease (Ebola or SARS), the government can detain him, and subject him to an expedited removal process. Even though he is literally on U.S. soil, and has valid papers, until he crosses the check point, he is not actually within the legal boundaries of the United States. Here, judicial process is slim to none.Second, the provision delegates virtually unfettered discretion for the President to determine what is “detrimental to the interests of the United States.” As a constitutional matter, it isn’t even clear if such a delegation is necessary, as this authority (I would contend) is inherent in the President’s Article II powers. But here it is in the statute. In terms of Justice Jackson’s concurrence in Youngstown, we are squarely in the First Tier, where the Executive’s authority is at its apex.
Third, the provision gives the President wide, wide latitude. His proclamation can last “for such period as he shall deem necessary.” In other words, there is no temporal limitation. This power also includes the authority to “suspend” the “entry” (there’s that phrase entry again), or “impose” any “restrictions” the President deems appropriate. The statute expressly countenances a permanent moratorium on not just a single alien on a case-by-case basis, but for a “class of aliens” from entering the United States if the President deems their entry “detrimental to the interests of the United States.” This power is quite broad.
This understanding has long been embraced by the Executive. In an August 1982 OLC Opinion, Assistant Attorney General Theodore Olson advised the President that the Coast Guard could interdict Haitian Flag Vessels, and deny entry to Haitian nationals under 1182(f). (5 U.S. Op. Off. Legal Counsel 242):
Under § 1182(f), the President would make a finding that the entry of all Haitians without proper documentation is detrimental to the interests of the United States and issue a proclamation suspending their entry. It could be argued that the entry of illegal aliens, Haitians or otherwise, is already ‘suspended’ since it is already illegal for them to come, and that the section is directed against those who are otherwise eligible. The section, however, is not limited by its terms to documented aliens, and the legislative history is silent on this point. Since the section delegates to the President the authority to exclude entirely certain classes of aliens, we believe that a return of the Haitians can be based on the Coast Guard’s power to enforce federal laws. 14 U.S.C. § 89(a).
This issue was litigated, extensively, and the courts held that determinations under 1182(f) were not subject to judicial review:
8 U.S.C. § 1182(f) clearly grants the President broad discretionary authority to control the entry of aliens into the United States. Section 1182(f) grants the President the discretion to act to exclude aliens “as he deems necessary.” Pursuant to this power, President Reagan issued Executive Order 12324 authorizing the interdiction of illegal aliens at sea. HRC concedes that the President’s order is not reviewable under the APA. They argue that the President’s subordinates are not carrying out his directive and that their failure to do so is subject to judicial review. . . .
Congress has committed to the President broad authority to control the entry of aliens or of any class of aliens when he determines that it would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f). The President may suspend or restrict the entry of aliens for the period he deems necessary and impose the restrictions he deems appropriate. Id. Pursuant to this broad grant of authority, President Reagan issued Executive Order 12324.
Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507, 1510 (11th Cir. 1992)
In Sale v. Haitian Centers Council (1993), Justice Stevens found for 8 members (all save Justice Blackmun) that 1182(f) allows the President to deny Haitians entry, simply based on their nationality:
It is perfectly clear that 8 U.S.C. § 1182(f), see n. 27, supra, grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. Whether the President’s chosen method of preventing the “attempted mass migration” *188 of thousands of Haitians—to use the Dutch delegate’s phrase—poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits. As we have already noted, Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility. Cf. United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). We therefore find ourselves in agreement with the conclusion expressed in Judge Edwards’ concurring opinion in Gracey, 257 U.S.App.D.C., at 414, 809 F.2d, at 841:“This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy.”
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187–88, 113 S. Ct. 2549, 2567, 125 L. Ed. 2d 128 (1993)
President Reagan relied on the same provision in 1986 to “suspend entry into the United States as immigrants by all Cuban nationals.”
By all accounts, 1182(f) provides all of the authority the President needs to exclude classes of migrants based on their nationality. Indeed, a 1984 dissent from the Eleventh Circuit acknowledged that this provision permits discrimination on the basis of national origin.
For example, in contrast to the parole statute, which contemplates individual consideration based on non-discriminatory factors, 8 U.S.C. § 1182(f) gives the Executive the power to bar entry of “any class of aliens” when “the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental….”3 Congress thus has shown that it knows how to grant the Executive the authority to discriminate based on national origin where it deems necessary, but no such grant can be found from the language of section 1182(d)(5).
Jean v. Nelson, 727 F.2d 957, 987 (11th Cir. 1984), aff’d, 472 U.S. 846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985) (Kravitch, C.J. dissenting from denial of rehearing).
What is the potential statutory argument to the contrary? 8 U.S.C. s 1152(a)(1).
8 U.S.C. § 1152(a)(1)
8 U.S.C. § 1152(a)(1) provides:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.There are a few critical points to stress. First, as noted earlier, Section 1182(f) concerns the “entry of any aliens.” Section 1152(a)(1), in contrast, concerns only the issuance of “immigrant visas.” These are different concerns. Generally, a person who was issued a visa is not subject to any of the grounds of inadmissibility (See 8 U.S.C. s 1182). Thus, he will almost always be admitted into the United States (absent some emergency, like the communicable disease example I offered earlier). David Bier, for example, writes “Immigrants cannot legally be issued a visa if they are barred from entry.”
Uphold Trumps order and remove that idiot judge from the bench give him a new job and a janitor
There’s certainly a lot of room for interpretation and naturally the racists, bigots and anti-constitutional folks demanding religious purity would gladly grasp at it. A president (an actual qualified leader rather than a fraudulent vagina grabbing wage stealing con man using the Oval Office to line his pockets) for example could construe all non white aliens or in this case, all people of a certain religion to be “detrimental to the interests of the United States”. This could apply to all African Americans, Latinos, Jews, or hell, even anyone registered as a Democrat (and before you give a big “hell yeah!!” to the concept of banning Democrats, it could also apply to banning Republicans) who travel outside the USA- once you leave, you can’t come back.
This is why we have a judicial system, to keep such madness and stupidity in check.
I suspect we will see your racist, sexist, egomaniac con man who thinks his elite status allows him to sexually assault women and that it’s “good business” to stiff workers out of wages for a job well done to continue to test it.
So, a President can not issue a directive within the executive branch to restrict a non citizen entry into the USA?
@Ajay42302: There is also the fact these Judges do not get National security briefings MORON, and should not use feelings or agenda on the bench.
Legality or precedent has nothing to do with left wing disruption and obstruction.
Maybe those idiots who want to welcome the so called refugees need to take them into their homes and care for them then hope they dont get their throats slit these silly empty headed liberal fools
@kitt:
You seldom make a coherent argument and you didn’t deviate in this case.
Your point implies that my argument of a sitting president banning any or all African Americans, Latinos, Jews, or even registered members of the opposition political party or in this case., a religious ban, is wrong and that such Executive Orders are immune from checks and balances from federal judges because not all parties are prevy to security briefings
That’s such an incredibly dangerous mindset especially for such an incredibly dangerous and deranged sitting president..
1. I am sick and tired of appointed high level officials ruling on their feelings versus the Constitution and law. ( e.g. sally yates and robart)
2. It is good thing that the election has brought out these anti- American pro illegal officials so the administration can hone in on them.
3. It is MY money they are using to fund illegals and refugees. illegals and refugees don’t contribute a penny . I am sick and tired as a taxpayer of being used as an ATM.
4. I want my rights and freedom as an American citizen to be protected.
Americans first.
The left hates America and Americans. The left is destroying it self by displaying the contempt they have for an America they despise.
And there are some establishment RINO’s in their camp. Those
Insider republicans are as dangerous as the kook-a-doodle leftists.
@Ajay42302: Actually on the last week in office, lame duck president Obama prevented Cuban immigrants from entering the US as freely as they had been allowed in prior years. I do not recall violent demonstrations by deranged liberals protesting this executive decision, but then this was only an Obama line in the sand so it was intended to be ignored.
Firstly, Ajay and Greg are the same person.
Secondly, the paid troll marching orders obviously focus on any post regarding the immigration situation, since the usual troll-chatter is absent on the rest of FA.
Thirdly, the new leftist tactic is to get mired in logical fallacies, with self-righteous “the law states” comments that compare easily to Far Right cases back in 2008.
Seems the Alt-Left rears it’s ugly head.
Easily dismissed, just as the Tea Party was.
The reason the office of the President has these powers, is not only because the Office is in charge of foreign policy, but also because it is over imminent threats to national security. Which is the same reason for a President singly being the Commander in Chief, rather than entrusting the day to day management, ordering and leadership of the military and bureaucracies to a congressional debate club. The fact that this Washington District Judge arrogantly thinks his emotional opinions on national security (he quoted no legal argument) entitles him to override the Constitutional separation of powers, and his order imperiously, does not only deal with and effect the state of Washington, but instead, he thinks he has the power to decide for the entire nation and to hell with Congress,the SCOTUS or the President. I see this clearly as grounds for impeachment of this judge.
@Ditto:
Funny thing about the Trump lickers. Most screamed bloody murder every time the black guy signed an EO for any reason at all and are now applauding every run amok power grab initiated by this madman in chief.
One huge difference in the new admin is that they’ve taken blatant lying and abject dishonesty to an entirely new level and yes, mush more so than the Obama admin ever did. They are making it the norm. Yet, the kowtowing boot lickers here at FA don’t even see it. Trump and his admin are profound liars and practice it on a daily basis-on most every issue.
So it would stand to reason that this newly elected con man, a guy who has a long history of stealing, lying, and a dis-concern for anyone but himself, a man who admits his prominence gives him a right to sexually assault women and steal workers wages, a man that clearly relies on dishonest disruption and chaos in order to advance his agenda should just maybe, just possibly, be held to some form of scrutiny.
Pardon me while I go catch up on the latest news as I just returned from a memorial service in Bowling Green KY.
@Ajay42302:
Your hypocrisy on display again, cretin.
You want to bring up EOs under Obama, while either being too clueless or blatantly dishonest to admit Trump’s legitimate temporary travel ban EO for 90 days is against the same 7 countries that Obama put out 6 month travel ban EO against in 2011.
So, stupid or dishonest, Ajay. Which are you? Most likely both, given your rabid leftist rantings.
@Pete:
Actually my distracting and questionably literate friend, I’ve argued that here on several occasions. The legitimacy (not to mention the actual intent) has been in the headlines and discussed by pundits, op eds, legal scholars , and legislators from both parties and around the world. If it is unquestionably constitutional as you imply, it wouldn’t be in the courts and there wouldn’t be odds of it being shot down.
The fraudulence in you and your clapping loyalist is exposed as you once again demand that your lying, racist, sexist wage stealing, egomaniac con man has to be right for no other reason than well, “Obama bad”. You pretend there are no counter arguments, that the constitution is a cut and dry document with no room for interpretation and if it is, it has to be how you and your clap traps want to interpret it or better yet, which political party initiates it, If a Democrat disapproves, then it has to be good and constitutional, regardless of how blatantly dishonest and power grabbing it is.
The hypocrisy actually falls back in your lap (you and the regulars here which all seem to be of one mind) as this rancid hack site has page after page attackng Obama on EOs and lying and is now giving a pass on a profound lying con man who has unquestionably taken both to an entirely new level,
The Constitution gives Congress and the President plenary power with respect to many issues. Among those are immigration and declaration of war.
Suppose for a moment the President asked for a declaration of war against country A and Congress voted in affirmation.
Using the “logic” of the left would allow the moonbat judge in Seattle to declare that unconstitutional.
Plenary powers granted to Congress and the President are not subject to judicial review.
@July 4th American:
It’s jaw dropping amazing how the rabid right has done a 360 on their take on Executive Power when it isn’t a black guy that was elected twice by not only the majority of electoral votes but by the popular vote as well.
I especially liked the obama EO’s that violated established law.
@Ajay42302:
It doesn’t matter how much deceitful smoke you blow. Something “being in the courts” does not make it unconstitutional, particularly when partisan hacks from the left like Robart are completely unable to actually show how the travel ban EO is supposedly unconstitutional by showing which actual law or part of the Constitution is allegedly being violated. The blatant political hypocrisy of deliberately ignoring Obama’s 2011 EO banning entry into the US from the same 7 countries – which was 6 months long – while shrieking over Trump’s 3 month ban against the same 7 countries is the definition of leftist doublethink, and demonstrates the leftist disdain for our founding document unless they want to use it to to obstruct government policy that is counter to the leftist march towards their fascist tyranny.
@Pete:
It’s funny how the consistent argumentive rebuttals from most every resident troll here goes something to the tune of stomping feet and saying “no, no, that’s not what I want to hear, I want it my way cause, cause, cause Obama and liberals bad”.
@July 4th American: Te liberals planted inside from the last administration are determined to force Trump to fail, The new appointees must ferret out these subversives and prosecute them..
http://thehill.com/blogs/congress-blog/homeland-security/268282-dhs-ordered-me-to-scrub-records-of-muslims-with-terror.
First the US constitution is only for US citizens second trying to apply it to non citizens as a theology doesnt make it a suicide pact.
@Ajay42302: #7 So you prefer that any asshole that puts on a robe and gets no security briefings from any agencies can over-ride a sitting President that gets intelligence allowing an informed decision on who may be detrimental to allow in the US? That concept is beyond your comprehension, and you and your ilk are willing to take chances with the safety of others just to attempt to limit the Powers of a duly elected Representative of the united States?
The Judge is out of his mind, no where in the constitution does it give powers of immigration to the court, nowhere, it was an individual state before the Fed took it over. Yes they can discriminate for any reason. The very reason the leftists must be taken out of the equation, they are so racist they actually think blacks are too stupid to even get a free ID. Yes soft racism but racist.
Too terrible your comprehension ability is so low you cant read my posts and understand them.
Would you lefties quit telling people this is not who we are, its getting really old.
The Seattle judge had no judicial reasoning to place an order on the EO.
The preview of national security is not up for judicial review. Congress set the conditions under which the Federal courts operate and they purposely chose to restrict National Security from the courts.
@Ajay42302:
LOL
You win the award for “Clueless Unaware Projectionist of the year”.
Jeff Sessions CONFIRMED! America has a REAL AG!
Let the indictments begin. Let’s see, Hillary, Clinton Foundation, Clinton Global Initiative, Wiener, Pizzagate and all involved, Podesta, Clapper, . . for starters.