I previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries. As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls. There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority. Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin. There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid. As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation. However, legal analysis by a court should not be influenced by such personal viewpoints. The question is solely whether the president is barred statutorily from taking this action.
The federal law relevant to this question contains tension between provisions that grant sweeping authority to a president while at the same time limiting that authority with regard to certain types of discrimination. As we previously discussed, the 1952 immigration laws states in Section 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” That is obviously quite sweeping and supporting of the actions taken under this executive order.
However, in 1965 the Congress enacted the Immigration and Nationality Act of 1965. That laws was designed to end the quota system given numerical preference to certain European countries. The operative provision states “no person could 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.” Congress exempted Cuban refugees but otherwise stated that no discrimination based on national or place of residence would be tolerated.
It is important to recognize what the 1965 law does not do. First, it does not apply to refugees and thus would not impact much of this order. This deals with immigrants securing visas. Second, the law does not ban discrimination based on religion.
“An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.”
However, that provision refers to an individual alien being kept out due to their “beliefs” and allows an override by the Secretary of State. The executive order is seeking a vetting process for individuals entering the country to isolate those with extreme or violent views. Moreover, while I have always been critical of the practice, exclusion due to extreme views is a recognized practice in countries like England. It is doubtful that Democrats would disagree that the Administration should bar entry of those individuals with violent pasts or violent beliefs.
Third, the law governs visas not later requirements of reporting or other conditions once immigrants are granted entry. Thus, President Carter signed out Iranian for special procedures and deported thousands of them. Finally, and most importantly, the law was itself amended in 1996. Congress expressly stated that “procedures” and “locations” for processing immigration applications cannot count as discrimination. Thus, the Administration could argue that “vetting procedures” are exempted even for non-refugees.
With the exemption of green card holders among hundreds granted entry, the foot print for analysis under the 1965 language has been reduced further by the Administration. Notably, the Office of Legal Counsel reviewed these laws and signed off on the legality of the executive order. I expect it was due to these exemptions and the amendment.
That does not mean that there is not a compelling argument to make but it is not as facially clear as has been suggested. Like the OLC, I would still give the advantage to the Administration. However, this is clearly the best foundation for challenge.
Of course, that leaves a potential conflict between the statute and inherent president authority in a rehash of past cases like U.S. v. Curtiss-Wright. In that opinion, the Court held:
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.
Presented with such a conflict, the provision could be narrowly construed. Courts have long adopted interpretations that would avoid such conflicts. If there is a narrow interpretation of the 1965 law that would avoid the conflict, it traditionally has been favored by federal courts.
The challenge to the order is also burdened by history. If the 1965 law means what the ACLU has suggested, actions by presidents from Carter to Obama would be facially unconstitutional. Presidents have routinely identified countries as raising threats requiring special procedures. President Obama was among them. There is no requirement that this can only be done in response to an attack or specific threat if the president finds a national security danger. Courts are loathe to substitute their judgment on such questions for a president.
So where does all of that leave us? It leaves us with a good-faith challenge to an executive order, but a challenge that will have to clear away a host of existing cases to prevail. Could it happen? Sure, but it is important not to overstate the authority in the area or allow passions to overcome analysis. At most the 1965 law would be relevant to part of the order and even for that portion (on the seven identified countries) the Administration has strong arguments on the basis of inherent plenary authority and statutory exemptions.