by Zabdi Salazar
The Supreme Court has allowed the travel ban to be fully enforced today, signaling a temporary win for the Trump administration. However, legal challenges will persist. An official ruling has not been settled, but the majority Supreme Court (7-2) has lifted injunctions of past decisions and urged the lower courts to quickly determine the lawfulness of the ban. Current litigation on the proclamation has brought to light the dangers of “exceptionalist logic” in arguments used by the Court to justify the executive’s authority to implement the ban on national security grounds. This warrants a timely discussion on the nature of executive authority for implementing the current policy.
Past litigation on the three different versions of the travel ban, has already contested its legitimacy. The Courts of Hawaii and Maryland had imposed two preliminary injunctions. Still, the federal California appeals court ruling had allowed the ban to go into partial effect a couple of weeks ago. On Dec. 8, an appeal of such ruling was scheduled to be heard by the U.S. Court of Appeals for the 4th circuit, while the 9th Circuit Appeals Court will review the case on Dec. 6. Considering today’s recent Supreme Court order, the proclamation may be in better standing upon review and it is likely that the Court will soon hear the case. Concerning the surrounding arguments present in litigation on the policy, an exploration on the analysis of executive authority over immigration, national security, and foreign policy related to the travel ban, is crucial to assess the proclamation’s legitimacy.
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On Sept. 24, the Trump Administration amended executive order 13780 for the second time through a Presidential Proclamation. The president describes the current version as a tougher and more expansive policy; it imposes varying restrictions on visas for an indefinite term to nationals in the following eight countries: Chad, Venezuela, North Korea, Syria, Yemen, Somalia, Iran, and Libya. In line with the Trump campaign’s promise to take a tougher stance on immigration, the president has defended the ban on national security grounds.
The Nov. 13 ruling of the federal appeals court in California had allowed the proclamation to take partial effect, overriding the determination of Judge Derrik K. Watson of Hawaii that the ban was outright discriminatory. However, the Court enforced the preliminary injunction on foreign nationals with a bona fide relationship to the U.S. (family members), upholding the Court’s standard in Trump v. International Refugee Assistance Project, 582 U. S. ____ (2017). Yet, with the current Supreme Court order, the administration can begin to fully implement the ban without consideration to nationals with a familial U.S. connection. According to the New York Times, “The Supreme Court’s orders effectively overturned a compromise in place since June, when the court said travelers with connections to the United States could continue to travel here notwithstanding restrictions in an earlier version of the ban.” Still, the official ruling may clarify doubts on this issue.
In regards to the constitutional arguments surrounding the proclamation, federal judges in Hawaii and Maryland had argued in October that the restrictions on six Muslim-majority countries is likely unconstitutional, while exempting North Korea and Venezuela. “To the extent that the Government might have provided additional evidence to establish that national security is now the primary purpose for the travel ban, it has not done so,” judge Chuang of Maryland held in the ruling. White House officials had strongly objected to such rulings. Attorney General Jeff Sessions pointed out the power of federal courts, with no knowledge of white house proceedings, to circumvent executive authority. “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the U.S. from what appears to be clearly his statutory and constitutional power,” he said.
Civil rights activists have continuously criticized the president’s proclamation and will continue to do so in light of the recent Supreme Court order. Anthony D. Romero, director of the American Civil Liberties Union (ACLU), has persistently argued that the revised ban does not fix the core problem of religious discrimination against Muslims, despite adding NK, Chad, and Venezuela to the list of countries. “President Trump’s original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list,” he said. In contrast, a senior administration official of the White House alleged that the ban was never motivated by religious discrimination.“The restrictions either previously or now were never, ever ever based on race, religion or creed. Those governments are simply not compliant with our basic security requirements,” he said. The White House also states that the countries chosen were determined by objective criteria, such as meeting U.S. vetting standards. These include cooperation with nations on sharing more data, terrorism and criminal-history information and using secure biometric passports.
The president’s proclamation 9645, “Enhancing Vetting Capabilities and Process for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats” presents an interesting question on the extent of executive authority. Does President Trump possess valid executive authority under the Constitution to implement the latest travel ban? Based upon a review of case law, statutory and constitutional authority, it is likely that the president does not have executive authority to execute this proclamation. The Court’s deference to the executive on national security dangerously rests on “exceptionalist logic” that has historically led to the curtailment of individual rights, while the proclamation’s expansive nature defies precedent.
Although the administration cites authority granted from the Immigration and Nationality Act, its interpretations of “class of aliens” and “detrimental to the interest of the U.S.” from § 1182(f) are unprecedented and dangerous. First, past proclamations narrowly target a specific class of aliens based on certain characteristics and in response to specific political or exceptional circumstances. In contrast, the “class of aliens” targeted by the proclamation is uniquely vast and broad, unspecific to any commonly identified circumstance, e.g. crisis or war. Second, the extreme deference granted to the Executive on determining what is “detrimental to the interests of the U.S.” in regards to foreign policy and national security has encroached upon individual rights.
Considering the expansiveness of this proclamation and the same Executive discretion granted, it is likely that rights will be infringed upon.
Although an explicit constitutional provision granting the president the right to issue executive orders or proclamations does not exist, historically it has been recognized as an implied power under Article II, Section I, “The executive power shall be vested in a president.” Section III of Article I also reinforces the president’s role as faithfully executing the laws of the land. In relation to foreign policy and national security, Congress has granted discretion to the president under Article II, Section II as “commander in chief of the Army & Navy” and the power to make treaties and to appoint ambassadors with the advice and consent of the Senate.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) established a standard to assess the legitimacy of executive orders. In this case, President Truman issued an executive order to seize privately owned steel mills during a time of war. The Court ruled that such action is unconstitutional and Justice Robert Jackson’s concurrence developed a guiding standard highlighting three scenarios that assess whether an executive order possesses valid power (p.635-38). First, executive acts created in pursuance of an expressed or implied authorization from Congress are constitutional. Second, acts pursued without any grant or denial of Congressional authority may be constitutional on a case by case basis. Third, an act pursued that is against the implied or expressed will of Congress will always be unconstitutional (p.637-38).
Trump’s executive order meets the first scenario of the Youngstown standard, since the proclamation stems from an expressed Congressional statute, the I.N.A. A Congressional statute, delegating powers to the president, supports that the executive is acting on an implied or explicit will of Congress. Still, Justice Jackson, in his concurring statement alleged that “Presidential claim to a power…must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system” (p.638). Thus, the question remains whether the expansiveness of authority granted to the president under the I.N.A. can still be regarded as constitutional.
During times of war, the president is usually granted greater deference on executive orders related to national security and immigration. In U. S. v. Curtiss-Wright Export Corp, 299 U.S. 304 (1936) President Franklin Roosevelt issued Proclamation 2087, forbidding the shipment of arms to combatants in the Chaco. The Court upheld such act because the executive is “the sole organ of the federal government in the field of international relations” (p.319). Still, this power is not absolute as Zivotofsky v. Kerry, 576 U. S. __, 3 (2015) held that “…it is not for the President alone to determine the whole content of the Nation’s foreign policy.” Thus, holding that Congressional input may sometimes be necessary.
In comparing Trump’s proclamation to Curtiss-Wright, there are some noteworthy differences. First, Roosevelt’s executive order in Curtiss-Wright specifically involved sanctions due to a foreign crisis, the Chaco War. The president’s power over foreign affairs also outweighed any commercial interests held by American citizens. Although one can argue that the ban is related to foreign policy because of the executive’s knowledge of the status of the immigration process of Middle East countries, it is not specific to any foreign crisis. The interests also in question concerns immigrants seeking entry to the U.S. rather than commercial interests of American citizens.
Knauff v. Shaughnessy, 338 US 537 (1950) addresses the authority of the president regulating immigration. In Knauff, Truman issued proclamation 2850 granting the attorney general authority to deny entry to a person found to be “prejudicial to the interests of the United States.” The petitioner, the foreign-born wife of a U.S. veteran from World War II, was denied entry and the Court upheld such decision holding that “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation” (p.542). Thus, the Court argues that aliens entering the U.S. is a privilege that is in the sovereign discretion of the president during times of war.
In comparison to Knauff, another case regarding the president’s power over foreign affairs, it is also dealing with a time of crisis, World War II. This case, however, is much more specific to immigration and the executive’s discretion in granting visas. Still, there are noteworthy differences. President Truman had declared a national emergency and the nation was in a state of war in 1941, asserting that proclamation 2850, regulating the entry of aliens was still in effect. In contrast, Trump’s proclamation generally cites prevention of terrorist attacks or other public safety threats to uphold the order. Second, the plaintiff denied entry had an immediate relationship with a U.S. citizen, emphasizing the broad discretion granted to the executive during times of war. In International Refugee Assistance Project, the Court had at least exempted immigrants who have familial U.S. connections.
Although it is not a final ruling, the recent Supreme Court order contests such exemption by allowing the administration to fully enforce the proclamation.
Justice Jackson’s dissent in Knauff addresses the government’s failure in balancing security and liberty. The Justice argued that it was astounding how the spouse of the petitioner would never know why his foreign-born wife was found to be “prejudicial” to the interests of the U.S. and denied entry (p.552). “Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings,” he said (p. 551). The dissent recognized the dangers of an extremely broad deference to the executive, even during times of war, as individual liberty may be violated. Considering that Trump’s travel ban is not issued during a time of war and that the ban exempts individuals with pre-existing relationships to the U.S., these facts may contest the legitimacy of Trump’s proclamation.
The Court’s arguments in granting wide deference to the executive in national security matters has largely followed an “exceptionalist logic.” In a Lawfare publication by Sitaraman & Wuerth (2017), they argue that national security exceptionalism is “arguments that all national security cases as a group should be subject to different analysis than cases not related to national security.” Curtiss-Wright & Knauff exemplified such logic by asserting the exclusive power of the executive on foreign policy. Likewise, the Court has cited similar logic in its June 26 per curiam for upholding parts of the travel ban. Still, over time, the Court began asserting limitations, as highlighted by Zivotofsky, the Youngstown standard and the dissent in Knauff. Youngstown directly addressed the “claim that the president has exceptional powers just because an issue touches on national security or foreign affairs.” Fortunately, the Court recognized that such claim “is not only illogical but also has potentially dangerous consequences.” The dangerous consequence at stake in Youngstown were individual liberties of Americans being seized their property.
In the current proclamation, expansive power is granted to ban nationals from eight different countries to even apply for a visa to the U.S. and the individual rights at stake are noteworthy.
Trump’s presidential proclamation cites authority from Congressional legislation that affirms the executive’s power on restricting the entry of aliens to the U.S. § 212(f) and 215(a) of the I.N.A. and U.S.C., Title 8 § 1182(f) and 1185(a) are the cited provisions. § 1182(f):
“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.”
The wording of this statute grants the president wide discretion in implementing restrictions on aliens. There are two important definitional terms. First, it must be determined what constitutes a “class of aliens.” Second, what may the president validly consider as “detrimental to the interests of the U.S.” The U.S.C. Title 8 categorizes “excludable aliens” such as aliens related to terrorist activities, adversely affecting foreign policy, and participants in Nazi persecutions or genocide.
“Class of aliens” and Case Law
There are many distinctions regarding the “class of aliens” that Trump’s travel ban refers to in comparison with past immigration restrictions that threaten its legitimacy. Although the amended § 1182(f) does not place any limitations, case law and past proclamations identifies a narrow, specific and targeted “class of aliens.” In contrast, Trump’s proclamation identifies a very broad “class of aliens,” hundreds of thousands of aliens from the eight countries deemed as a threat.
Case law has developed how presidents have interpreted these provisions historically. In Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) the State Department, under the authority of the I.N.A. of 1952, denied four unrelated visas to nonimmigrants invited by American citizens to speak in the U.S. The plaintiffs claimed that the executive cannot deny entry based on “foreign policy.” The Court held otherwise, citing the Supreme Court’s recognition of the executive’s power over foreign affairs (p.1063). Still, the Court remanded the case for more evidence regarding the misrepresentation of § 1182(a), subsections (27) and (28). These specific subsections categorize 33 different classes of aliens. Sale v. Haitian Centers Council, Inc. 509 U.S. 155 (1993) also concerns a class of excluded aliens. This case dealt with George Bush’s executive order 12807 on the interdiction of illegal aliens from the high seas, arguing that the entry of such aliens is “detrimental to the interests of the U.S.” The lawsuit involved the Haitian Refugee Center representing a group of interdicted Haitians, arguing that the Government failed to protect aliens that qualified for asylum. The Supreme Court ruled in favor of the Government, arguing that the president has power to exclude aliens and that the government met all statutory requirements (p.188).
In Abourezk, the “class of aliens” were specific to four individuals requesting visas. This is a much more direct determination and judgement of the type of nationals denied visas to the U.S. in comparison to a blanketed ban. The case also referenced Reagan’s proclamation 5377 and how it was specific to suspending entry of officers or employees of the Cuban government or the Cuban Communist Party. Sale concerned specific proclamations related to suspending the entry of undocumented aliens of the high seas. Although most of these aliens were Haitian, they shared a common characteristic of seeking entry to the U.S. illegally through the high seas.
“Class of aliens” and Nationality
Presidential proclamations have also used the same statute to prevent the entry of a “class of aliens” related to threatening the “peace, security, or stability” of certain countries such as Bosnia, Zimbabwe, and Sierra Leone. Other proclamations also specify excluding aliens related to human rights violations (Proclamation No. 8697) or corruption (Proclamation No. 7750). Proclamations concerning the exclusion of immigrants from specific countries also exist but are limited. In 1979, President Carter issued an Executive Order No. 12,172 on Iranian aliens and a proclamation on sanctions against Iran, which also suspended nonimmigrant visas to Iranians, citing authority from INA 215(a). In 2011, the State Department under President Obama reviewed the vetting system for Iraqi refugees and aliens under the special visas program, resulting in a reduced number of Iraqis entering the U.S.
The few proclamations denying entry specifically based on nationality are much different from the current travel ban. Although the Trump Administration argues that the Department of Homeland Security has found that nationals from the eight listed countries pose a threat to the U.S., there are no commonly known specific threats or circumstances justifying the ban. In contrast, when Jimmy Carter issued a restriction on Iranian visas, it was specifically related to the Iran Hostage Crisis and the restriction solely applied to Iranian nationals. The rationale for the visa restrictions is clearly justified as 52 Americans were taken hostage for 444 days. Likewise, when the Obama Administration reviewed and slowed the pace of granting visas to Iraqi nationals it was in response to a terrorist plot by Iraqi refugees. Unlike Trump’s proclamation, Obama’s policy was not a ban, it was related to a specific threat, and it was narrow in focus. Even with a specific terrorist threat at hand that may justify expansive executive authority, the administration did not institute an outright ban through an executive order. Another distinguishing factor is how these proclamations have been issued during exceptional times such as a crisis or war, where greater Executive power can be more easily justifiable. Even then, individual rights must be taken into account.
“Detrimental to the interests of the United States”: Abourezk & Sale
Although the Court has granted wide latitude to the president determining what aliens are “detrimental to the interests of the U.S.,” complete deference is dangerous. Case law proves how a lack of standards can encroach upon the rights of refugees and American citizens. Sale dealt with Article 33 of the United Nations Convention and Protocol Relating to the Status of Refugees (1967). This provision grants refugees the individual right of non refoulement, guaranteeing their right to seek asylum. Although the Court held that the protocol is not self-executing and that it does not apply because the Haitians had never reached U.S. territory, evidence supported that the Haitians qualified for asylum under Article 33. Jones compared this case to the decision in Dred Scott in his 1992 publication, Haitian Refugee Center, Inc. v. James Baker, III: TheDred Scott Case of Immigration.
“The Court…held that Haitian refugees…have no substantive legal rights… returned to their symbolically political masters with a clear and probable consequence of punishment…There is probative evidence that such persecution and death has occurred,” he argued. Thus, such broad deference to the Executive in this case denied the rights of refugees to reach asylum.
In regards to Trump’s proclamation, refugees from some of the seven listed countries are excluded from any possible applications of asylum. Considering that some of the listed countries are definitely experiencing political turmoil, refugees are denied potential recourse solely because of their nationality. The Syrian civil war in 2011 has led to the displacement of 11 million Syrian refugees. Similar to the U.S. often falsely asserting that Haitians did not qualify as refugees fleeing persecution in Sale, it is argued that the administration implicitly denies that a global refugee crisis exists. Although current refugees may not qualify for admission under Article 33 of the UN protocol, since they are not in U.S. soil, unlike the debatable situation with Haitian refugees at sea in Sale, the U.S. Refugee Admissions Program (USRAP) has set standards for U.S. obligation under international law. Even though the most recent version of the travel ban no longer contains restrictions on the admissions of refugees, the U.S. has significantly reduced the number of accepted refugees, to 50,000 despite commitment under USRAP 2017 to admit 110,000 refugees. Unfortunately, it is difficult for a powerful country like the U.S. to be held accountable to international agreements. Despite the government’s national security concerns to support such decision, vetting processes are already stringent and tough, and refugees have not caused a single lethal terrorist attack since 1980.
Although Abourezk concerned the first amendment rights of U.S. citizens to associate and invite foreigners to the U.S. and not the rights of aliens, the Court still deferred to the Executive by citing Knauff. Such adherence to standardless delegation (i.e. lack of standards placed by Congress on legislation and review by the Court) can therefore easily encroach upon individual liberties. Fink assessed the abuse of executive power over immigration law in his 1998 publication, Abourezk v. Reagan: Curbing Recent Abuses of the Executive Immigration Power “Unreviewable discretion in the immigration area presents the opportunity for abuse and conflicts sharply with traditional notions of judicial oversight…” he argued. Thus, such executive power over immigration may grant the Trump administration authority to issue the expansive travel ban, but at the possible risk of abuse. Considering the broad language of the I.N.A. statute, it merits a narrow interpretation for the sake of preserving constitutional rights, as it represents an excessive delegation of power from Congress to the Executive (p.178).
In Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) the Court rejected the notion that the order is not subject to judicial review by citing Abourezk (p.768). In Abourezk, the court held that “The Executive has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where those statutory and constitutional boundaries lie” (p.1061). Despite the different constitutional rights at issue in Hawaii, Moore & Cooke in their 2017 publication, Executive Order: Strike of a Pen, Law of the Land?, argued that a standardless delegation of power to the president also exists and merits substantial scrutiny.
Trump’s proclamation could potentially curb such expansive power by finally recognizing that a line should probably be drawn.
The government has frequently argued that the Court is ill-equipped and uninformed to judiciously review executive decisions in foreign policy. In a memorandum by the defendants in opposition to the injunctions, the government further states that the executive must quickly act. They argued that narrow interpretations of the statute “would lead to the absurd result that the President could not invoke his authority to restrict entry of nationals from a country with which the United States is at the brink of war.” However, Collinger, in his 2016 publication, The Terror Exception: The Impact of the 2001 Authorization for Use of Military Force on United States Counterterrorism Policy in the Middle East Under the Obama Administration, addressed the dangers of expansive delegation of executive power (AUMF) based on national security grounds, meriting scrutiny. He concludes arguing that “while extensive executive power serves short term security interests, deference to the executive neglects the Constitution and civil liberties in the long term.”
Thus, it is dangerous for the executive to have complete absolute power even during times of war or a de facto war on terrorism. The Court has recognized and curtailed absolute power in Youngstown, Zivotofsky, and in International Assistance Project. Knauff presented a unique situation that the Court’s had potential to remedy, by allowing a U.S. veteran’s wife to enter the U.S. during WW2, but it did not because of national security exceptionalist logic. A critical balance is needed, which allows the president to rationally act quickly, while upholding individual rights. Similar to Knauff, Sale and Abourezk, the current proclamation, although not directed at American citizens, does not recognize such balance and exemplifies the dangers of granting an absolute power to the Executive on national security grounds.
Although Trump’s proclamation meets the first scenario of the Youngstown standard and is granted extreme deference under I.N.A. § 1182(f), it is still likely that the breath of power exercised under the statute is unconstitutional. The statute justly delegates executive power over denying alien’s entry. However, the problem lies in the extremely broad interpretation of the provisions “class of aliens” and “detrimental to the interests of the U.S.” In comparing the Trump Administration’s interpretations of these two provisions to past proclamations and case law, it is unique and dangerous.
Past presidential proclamations have denied entry to nationals with specific characteristics such as aliens related to terrorist acts, corruption, human rights violations, and contributing to the political turmoil of foreign nations. Acts related to banning immigrants from a specific nationality are imposed during an extraordinary circumstance such as a time of war, crisis, or a specific instance of domestic strife.
In contrast, Trump’s immigration restrictions on the eight countries does not follow any of these characteristics and therefore defies precedent.
Despite the extremely broad deference the Court has granted to the executive in determining what aliens are “detrimental to U.S. interests,” this standardless discretion has set the foundation for an abuse of power. Such national security exceptionalist logic has dangerously curtailed liberties in the past. In Knauff, an American citizen’s foreign-born wife was denied entry with no justification given. In Abourezk, American citizen’s first amendment rights to associate with foreigners was denied. In Sale, the rights of Haitian refugees under a U.N. protocol were dismissed. These encroachments upon individual liberties are not rare, but rather an obvious outcome of granting unreviewable and standardless discretion to the Executive over immigration law. Thus, it is sensible to predict that Trump’s Proclamation may infringe upon individual rights considering its effect on hundreds of thousands of immigrants. Unfortunately, no one has authority to review or overrule the Executive’s judgement.
Zabdi Salazar is a sophomore Political Science and Business Administration major, as well as the Director of Business operations for The Contemporary. Email Zabdi: firstname.lastname@example.org
The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.
The photophoto above was taken of President Trump signing the National Security Presidential Memorandum on Strengthening the Policy of the United States’ Toward Cuba on June 16, 2017 (Official White House Photo by Shealah Craighead). The photo is in the public domain.