Posted by Curt on 5 February, 2017 at 1:16 pm. 27 comments already!


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.”

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