Reading time: 7 minutes
Copyright 2019 Dan Cofran

Under the Constitution, all federal powers are specifically enumerated and spread among three separate and equal branches of government:  the Legislative, the Executive and the Judicial.  A series of checks and balances maintains equilibrium among the branches to avoid dominance by any one branch . . . autocracy, for example, in the case of the Executive branch, a major concern of the Founders.

While the Constitution, at Art. I, Sec. 8, cl. 4, gives Congress power to “establish a uniform Rule of Naturalization,” it is silent about which branch has the power to regulate immigration.  Naturalization is limited to how foreign nationals already legally in the U. S. can become citizens.  Immigration, on the other hand, is about whom and under what conditions may foreign nationals come to the U. S. and remain here temporarily, e.g. visas.  The Constitution’s silence is understandable.  Immigration wasn’t much of an issue in the 1790s when Europe, for example, was an easy two months ocean voyage away.

Immigration became an issue in the late 1800s, driven by unpopular Chinese and Irish immigration on the west and east coasts.  Congress took the initiative and over time passed a series of immigration statutes, culminating with the lengthy (300 pages) and complex Immigration and Naturalization Act in 1952 (over a Truman veto as “un-American” to exclude others).

Even though the Constitution was silent, courts were satisfied that Congress had the power to regulate immigration based on an “inherent power” to legislate, as a matter of sovereignty.  In addition, courts saw immigration as a “political” issue best left to the two political branches, the Legislative and Executive, but without really distinguishing the allocation of power between these two branches.  Courts avoid “political” questions, to be resolved at the ballot box, like the plague.

Under the INA, Congress delegated enforcement of the extensive immigration code to the Executive branch.  Under our separation of powers system, the Congress legislates, Art. I, Sec. 1, and the Executive branch “shall take Care that the Laws be faithfully executed,” Art. II, Sec. 3, “faithfully” meaning within, not beyond, the bounds of those laws.

The power of the Executive branch today to enforce immigration statutes is broad, but not absolute.

Statutory Delegation and Limitations.  Under our separation of powers doctrine, the Executive branch must act within the scope of authority granted by Congress’ statutes.  Think of it like a fence.  For example, if Congress by statute authorized the President to deport a visa holder only if he or she committed a felony, the President could not deport a visa holder for committing only a misdemeanor.

The statute sets forth, at 8 U.S.C. Sec. 1182(a)(3), various grounds for denying visas to foreign nationals based on individual determinations, not blanket or class assessments applicable to nations or other groups, based on an individual’s terrorist activities, criminal convictions, espionage, adverse foreign policy consequences (but with a specific exception for beliefs, statements or associations if lawful in the U.S.), Communist party membership, Nazi participation, genocidal acts, child soldiering and similar categories.

The statute also broadly provides, at 8 U.S.C. Sec. 1182(f):

“Whenever the President finds that the entry of any aliens or 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 [“green card” permanent residents] or nonimmigrants [visa holders and refugees] or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Generally, as a matter of statutory construction, specific statutes prevail over general statutes addressing the same subject matter.  The specificity of the statute requiring individual assessments to deny visas based on terrorist activities or adverse foreign policy consequences, including protection of beliefs, statements or associations if lawful in the U.S, indicates a Congressional preference over the “class of aliens” statute as relied upon for the current seven nations travel ban.

Inherent Power.  Apart from the statute, the Executive’s power to regulate immigration may be further broadened by the view of some courts that the Executive branch may also have its own “inherent power” beyond statutes and the Constitution to regulate immigration, based on the president’s power to control foreign affairs and protect national security.

Constitutional Limitations.  However, whether acting under Congress’ statutory delegation or an inherent power, a president’s immigration enforcement cannot violate the Constitution, particularly, individuals’ constitutional rights to due process under law (notice and a hearing), equal protection of the laws, freedom of speech, freedom of religion, freedom of association, etc.  The Constitution is always the “supreme Law of the Land.” Art. VI, cl. 2.

Do foreign nationals have constitutional rights?  “Yes” and “no.”

The Constitution importantly states our civil liberties belong to the “People,” not just “Citizens,” a distinction clearly and purposefully made in the Constitution.  Foreign nationals have constitutional rights, depending on how connected, so to speak, they are to the United States, as follows:

Permanent Residents (“green card” holders) are considered “immigrants” here permanently by INS.  They are treated as intending to become citizens and pretty much have full constitutional rights, whether in the U.S. physically or not.  The recent temporary ban likely violated these peoples’ constitutional rights.  It appears, however, the White House has backed off on including permanent resident in the ban.  That was a very serious constitutional weakness in the ban.

Visa holders (travel, work, study, medical treatment, etc.) are considered nonimmigrants here temporarily by the INS, and are in a gray area.  Visa holders while in the U.S. likely have some, but not full constitutional rights.  If not in the U.S., visa holders likely have no constitutional rights.

Refugees.  These are persons not in the U.S. going through the lengthy vetting process.  Not a good case for asserting constitutional rights.

Permanent residents (green card holders), if dropped from the ban, are out of the picture for now.  Visa holders arriving at U.S. airports and allowed to enter are probably okay for now.  Visa holders arriving in U.S. airports but who may still be in airport detention, likely have some level of due process and equal protection rights. Visa holders not in the U.S. have no constitutional rights on that count alone.

If the only class of persons still affected is visa holders outside the United States, they have no constitutional rights and the ban likely is lawful if limited to that issue.

However, separate from immigration rights, to the extent the ban is based on an Executive branch inherent power to protect us from national security threats, the president may have unlawfully abused his discretion.

Facts matter.  Specifically, even though the President’s power to act in immigration matters may be extensive, there must be some meaningful factual relationship, or balance, between the seriousness of the threat to foreign affairs or national security and the scope of the government action taken.

In this case, no foreign nationals from the seven nations in question have committed terrorist acts in the U.S. since 911, but the ban applies to millions of people . . . virtually every person in the seven nations.  In addition, while probably not an issue, as a technical matter, courts, like all Americans, are very cautious around anything smacking of religious discrimination.

Is this a sledge hammer when a fly swatter will do?  Stay tuned.

P.S.  For the office pool, the Ninth Circuit will deny the pending application for an emergency stay of the district court temporary restraining order based primarily on procedural grounds . . . the government hasn’t shown an emergency.

© 2019 – 2021, Dan Cofran. All rights reserved.