Grant E Hamilton, Where the Blame Lies, 1891
So the President sent a tweet last night saying something about stopping immigration, implying that a new executive order will follow. As I write this, it appears he meant something a bit more limited. Yet, every time we go down this road, we find ourselves debating the separation of powers and the President’s ability to do stuff generally within the field of immigration. So what follows is a bit of a thought experiment that will hopefully shed some light on the most recent, and any future, additional restrictions. What if the President really did try to stop all immigration?
Who has the power to regulate immigration?
The power to regulate immigration is not enumerated in the Constitution, though our basic knowledge of ‘separation of powers’ tells us that Congress (the legislative branch) passes the laws per Article 1, the President (the executive branch) enforces them per Article 2, and the and the courts (the judicial branch) review them per Article 3. And so it is with immigration. INS v. Chadha, 462 U.S. 919, 940-41 (1983).
Generally, the President’s administrative powers are delegated (either formally or by practice) from Congressional statutory authority. Therefore, it was up to Congress to figure out what to do with people seeking to enter the U.S., unless it decided to pass a law giving the President that power. And until the late nineteenth century, very few immigration laws existed. The first, enacted in 1875, did not have provisions for deportation, and even the rules that followed were limited by statutes of limitation (i.e., expiration dates). Simpler times.
In 1952, Congress passed systematic legislation in the form of the Immigration and Nationality Act (INA). So the President is largely left with enforcing this statutory framework, and under court review at that. However, section 212(f) represented a potentially massive delegation of authority over exclusion, stating (in relevant part):
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.
But there’s also this other idea that took hold during the Cold War, from which point debates largely revolved around the concept referred to as the “plenary power.”
What is the plenary power?
The plenary power is a judicially created doctrine (basically, an idea or principal influencing governmental actions). The plenary power holds that when Congress acts in this field, it is not subject to full constitutional controls subject to the U.S. Supreme Court—it can act outside of the constitution. Thus alienage (a person’s status in the U.S.), like foreign affairs, is exempt from judicial review.
Plenary power implies inherent executive authority to regulate certain (though not all) aspects of immigration. This limits judicial scrutiny––the courts can’t rule that the Executive is overstepping the limits of its authority if there are no limits on its authority. Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 571 (1889). (The ability to exclude a foreigner is a political determination not subject to judicial review.)
Though no constitutional provision grants Congress such power, the theory goes that, since the U.S. is a sovereign power, international law grants it implicit power to control its borders––and the exclusion of foreign nationals is a fundamental act of such sovereignty, inherent in an executive power to control foreign affairs. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
Are there any limits to this plenary power?
Yes––the exercise of the plenary power to exclude foreign nationals from the U.S. must be based on a “facially legitimate and bona fide” reason, and if it isn’t, then the courts can balance the non-legitimate/bona fide reasoning against Constitutional concerns. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).
Against this backdrop, the President has taken to the issuance of executive orders, pursuant to his Article 2 power and statutory authority under INA § 212(f), to direct the relevant federal agencies to exclude foreign nationals from the U.S. in certain circumstances.
What are executive orders?
Executive orders are written directives issued by the President that govern the actions of executive branch officials and agencies––he’s basically telling federal enforcement employees how he wants them to do their jobs. Think your boss at the office setting dress codes or social media policies, except these ones are for building walls––figurative and literal––like the travel ban.
What is going on with the travel ban?
When complaints were filed to prevent the original travel ban from going into effect (based on a variety of Constitutional and statutory concerns), several federal district courts issued “injunctions”––these are tools to “enjoin” (meaning, to stop) new laws from coming into effect while the courts review them. The injunctions, not the merits of the complaints, were the focus of the U.S. Supreme Court, which lifted certain parts of the injunction on what was, at that time, the third iteration of the travel ban. (We’re skipping a lot of substantive and procedural history here.) SCOTUS didn’t state “we think that travel ban 3.0 is totally fine and legal and immune from further challenges.” It stated that the injunctions were too broad, and that certain parts of the law could go forward, while other parts would remain enjoined (while the courts continued to review them). And to continue to survive legal challenges, one might expect that, to pass the “facially legitimate and bona fide” test, such a ban would be short in duration and narrow in scope––right?
Nevertheless, the language used by the courts throughout the decision when discussing the “merits” (the substance) of the law basically implied that the challenges to the ban were unlikely to proceed. In fact, to lift an injunction, a Court must find that the challenges are likely to fail when finally considered. Since then, the district court in Maryland, where one of the main challenges originated, threw out that challenge, and SCOTUS hasn’t taken up the arguments since.
However, with that wiggle room remaining, several new lawsuits are moving forward under a somewhat different basis––to move to the discovery phase of trial in which documents are produced and submitted to the court in order to evaluate the origins of the ban (and the manner in which it was subsequently carried out) to determine whether it is not in fact “rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.”
Essentially, the complainants want to review the data relied on by the President to determine whether it was sufficient such that the restrictions were “rational” in the first place. Most decisions are presumed to be rational unless they can be shown that they were animated by “animus” (basically, a desire to punish or discriminate for no good reason). This is especially important in the 1st Amendment context, which featured heavily in the 4th Circuit lawsuits challenging the ban, but the lack of a rational basis was also featured in the 9th Circuit lawsuit as well. (The plaintiffs in that case basically stated that the President did not provide enough evidence to justify the decision he was making.) However, SCOTUS did not give these arguments much consideration, so they’re very much alive again.
So was the travel ban temporary?
Nope! It’s still in place!
Did it at least stay narrow in scope? Nope! It has grown! On January 31st (the 3rd anniversary of the SCOTUS order allowing the version 3.0 to move forward) the President released version 4.0, adding six new countries to the list: Myanmar, Eritrea, Nigeria, Kyrgyztan, Sudan, and Tanzania.
Geez. So can the President just switch the Constitution on or off at will?
Nope! SCOTUS has made clear elsewhere that the Executive does not have the “power to switch the Constitution on or off at will.” Boumediene v. Bush, 533 U.S. 723, 765 (2008). So there’s that.
So what if the President DID try to stop all immigration?
At its most extreme, a ban on all immigration could be construed to apply to applications to extend, change, or adjust status here within the U.S. That would be a helluva stretch, and I’m guessing that the President would be relying on creative interpretation of the word “entry” in INA § 212(f) to extend to all applications for “admission” into a status, in any way, shape, or form, within the U.S.
If, in drafting §212(f), Congress had intended to completely neuter themselves and to delegate all of their power to regulate immigration the President, I would think that they would have been, oh, a bit more careful and specific in their drafting. For starters, they not have just said ‘entry’, which carries a much different meaning that “admission” and all the other legal terms we use to describe various applications and petitions for status.
Moreover, the powers discussed above are generally read to flow from concerns related to sovereignty and the ability to control borders, which would presumably exclude, if not people who entered unlawfully, at least people who were already legally admitted––and even more so, those who remain in a form of temporary legal status (of which there is a variety).
As with travel ban 3.0, you could expect lawsuits to be filed immediately after a new executive order was signed, and for a judge somewhere to execute a nationwide injunction blocking it from going into effect––either in whole or in part. (SCOTUS recently smacked down the TRO on the public charge order––a conversation for another time––loudly complaining of overly broad injunctions. With that in mind, I could see a federal district court judge allowing some part of an executive order to go into effect to avoid that concern.)
There would be appeals, and a good chance that it would get back to SCOTUS, which would hopefully give us a workable rule for understanding the scope of the President’s power in the field of immigration––whether as limited to § 212(f), the plenary power, or otherwise.
Until then, be sure that we’ll continue to conjecture until SCOTUS gives us that rule.