Travel Ban 2.0: Presidential Power on Display

Donald Trump at a New Hampshire town hall. Flickr/ Creative Commons/ Michael Vadon.

Congress has given the president blanket authority to prevent the entry of any foreign citizen.

President Trump has signed a revised executive order temporarily suspending travel from certain terror-infested countries and pausing refugee resettlement. It has been modified to avoid being put on hold by judges, as the original was, and will go into effect on March 16.

The new version of the order changes several aspects of the original. Iraq has been removed from the list of countries whose citizens are barred for ninety days, leaving Iran, Sudan, Somalia, Syria, Yemen and Libya. The order explicitly exempts people from these countries who are green-card holders or who had a visa before January 27 (the date of the original order). Refugee resettlement is paused for 120 days, as in the original, but the indefinite pause in Syrian refugee admissions has been removed. (The reduction in FY 2017 admissions from Obama’s target of 110,000 to 50,000 remains in the revised order.) And the original order’s instruction to give preference in refugee admissions to persecuted religious minorities has been removed.

More important than the specifics of the two executive orders is the underlying principle. Congress has given the president blanket authority to prevent the entry of any foreign citizen; here’s the relevant statute, 8 U.S.C. § 1182 (f):

(f) Suspension of Entry or Imposition of Restrictions by President

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 law doesn’t say “some aliens” or “certain classes of aliens approved by the judiciary” but “any aliens” or “any class of aliens.” As the attorney general said during the Monday press conference announcing the revised order, “This executive order, just as the first executive order, is a lawful and proper exercise of presidential authority.” It is telling that the highest court to rule on the original order, a panel of the Ninth Circuit Court of Appeals, did not even mention the statutory basis of the order, let alone explain why it thought the statute didn’t apply.

The Supreme Court has repeatedly upheld the plenary power of the political branches of government over immigration. As it ruled in one case, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” The Bill of Rights does not apply to foreigners abroad.

The executive order would be a curious “Muslim ban” since it applies to only about 10 percent of the world’s Muslims. But even if it were a ban on the admission of all non-citizen Muslims, it would be legal. If it were a ban on the admission of all non-citizen redheads, it would be legal. If it were a ban on the admission of all non-citizens who oppose use of the Oxford comma, it would be legal.

The advisability of such exclusions is a separate question; barring the admission of any foreigner who identifies as a Muslim would be bad policy. (The Oxford comma thing, on the other hand, is tempting.) But the proper forum for such a debate is the media and Congress, not the courts.

The underlying worldview of the challenges to the executive order was made clear by libertarian legal scholar Ilya Somin: “It is highly questionable whether the original meaning [of the Constitution] gives the federal government any general power to restrict immigration at all, much less one so sweeping that it overrides individual rights that restrict every other type of government action.” In other words, the people, through their elected representatives, may not restrict the arrival of foreigners, and if they try, the courts must stop them.

Since the judges who put the original order on hold were not ruling based on the law but rather on their policy preferences, this revised order will likely also be halted in court. It is important that the Trump administration fully litigate the issue and, if necessary, appeal the decisions to the Supreme Court, preferably after Neil Gorsuch is confirmed and seated. A precedent that judges may veto decisions by the elected branches of government on who is permitted to enter our territory would represent one of the greatest judicial power-grabs in American history. Control over who may enter a country is a fundamental attribute of sovereignty, and to the extent the people are stripped of that authority by unelected judges, the people are no longer sovereign. Self-government itself is at stake.