Ian McManus, Associate Member, University of Cincinnati Law Review
On November 9, 2018 President Trump signed a proclamation order barring migrants from applying for asylum if they enter the United States without passing through a designated entry point.[1] This executive action is certainly dramatic but is somewhat unsurprising given the administration’s hostility towards migrants who apply for asylum after entering the country illegally. For example, In a footnote of his Matter of A-B- decision, former Attorney General Jeff Sessions went so far as to suggest that Immigration Judges should exercise their discretion to deny otherwise valid asylum applications if the applicant entered the Unites States illegally.[2] Regardless of this disdain for immigrants who entered the country illegally, the Immigration and Nationality Act (INA) under §208(a) clearly allows migrants to apply for asylum regardless of method of entry.[3] Therefore, this proclamation order seeks to use the President’s authority under §212(f) of the Immigration and Nationality Act (INA) to bar otherwise statutorily eligible migrants from applying for asylum.[4] While the President is given wide latitude under §212(f) to temporarily prevent the entry of any class of migrant he deems detrimental to United States interest, he has nonetheless exceeded his authority in this proclamation. This article will explain why neither the President’s §212(f) authority nor his inherent executive powers can support his new order.
The President Cannot Use His §212(f) Authority to Contradict Express Provisions of the INA
The likely reason why the President feels confident in exercising his §212(f) authority at this moment is the Supreme Court’s recent Trump v. Hawaii decision.[5] This decision had the Supreme Court uphold the President’s travel ban executive order which prevented the entry of several nationalities of migrants based on national security concerns.[6] Specifically, the President argued that the countries included in the ban did not adequately share information on their citizens seeking entry into the US.[7] According to the Court, the plain language of §212(f) provides the President with broad discretion to suspend the entry of migrants into the United States if he finds such entry detrimental to US interests.[8] However, this ruling was also based on the Supreme Court’s finding that the President had not exceeded his authority under 212(f) by contradicting a provision of the INA.[9] The Plaintiffs in Trump v. Hawaii argued the INA already provided a procedure for solving the issue of the admission of aliens from countries that share insufficient information with the United States and that Trump was impermissibly supplanting that procedure with an absolute bar.[10] This argument was dismissed by the Court based on a finding that there was no conflict between the INA and the President’s order.[11]
Unlike in Trump v. Hawaii, the order at issue in this article clearly and directly contradicts the INA. By providing that migrants cannot seek asylum if they enter outside of a designated port of arrival while the INA specifically says otherwise in §208(a), the President clearly contradicts the INA. Based on this contradiction, the President’s §212(f) authority cannot support this action.
The President’s Inherent Constitutional Powers on Immigration Matters Cannot Support his Order.
Since the President cannot support his order through his §212(f) authority, he can only seek to support the order through his inherent executive powers. In situations where the President is exercising his power relative to Congress, it is necessary to apply the framework from Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer.[12] The Youngstown framework details three-levels of Presidential power: (1) the President is acting with implied or express Congressional approval; (2) the President is acting in areas where Congress has been silent; and (3) the President is acting in defiance of Congress.[13] According to this framework, the President is acting at the height of his power in the first category, and at his lowest level of power in the third.[14] In the third category, the President can only rely on his inherent powers minus Congress’s powers.[15] Since the President’s order is in direct conflict with Congress’s will, as evidenced by INA §208(a), he is operating at the lowest level of his authority. In order to properly apply the Youngstown framework, it is necessary to describe what powers each branch holds.
Traditionally, the power to make immigration decisions has been left to Congress, either through the Commerce Clause or an understanding of Congress’s inherent powers.[16] In the early 1800s, the Courts considered the Commerce Clause to be the basis for immigration authority in the United States.[17] This is evidenced by the Henderson v. Mayor of New York decision that explained that the impact of immigrant labor on interstate commerce allowed Congressional regulation.[18] The Supreme Court would later abandon the Commerce Clause argument for an inherent federal powers argument in Chae Chan Ping v. United States.[19] In this decision, the Court reasoned that the federal government held powers related to principles of national sovereignty that included the power to exclude migrants and that this power was left to Congress.[20] Through either justification, it is clear that Congress had the inherent power over Immigration and merely delegated to the Executive in order to enforce Congress’s will.
The President is likely to challenge the idea that Congress holds the power to exclude migrants, rather than the Executive branch, by invoking his foreign policy powers. This argument would find some support through the Cold War decision United States ex Rel. Knauff v. Shaughnessy.[21] In this decision, the Court stated that exclusion of migrants was “inherent in the executive power to control the foreign affairs of the nation.”[22] However, this statement is mere dicta; the Court’s decision turned on a finding that a statute delegating power to the President to exclude migrants was constitutional.[23] Regardless, the suggestion that the President holds inherent power to exclude migrants is doubtful for three reasons. First, historically the President has only acted to exclude migrants through delegated powers.[24] Second, the question of the President’s inherent exclusion powers has not meaningfully been revisited since its issuance; this suggests that Knauff decision represents an abandoned break from previous precedence.[25] Third, the Court in Trump v. Hawaii consistently described the power to exclude migrants as belonging to the “political branches” and described the Executive’s exclusion power as “delegated”.[26] This language suggests that the current court believes Congress holds the power to exclude migrants and discretionarily shares that power with the Executive through delegation.
Since the Supreme Court has historically found Congress to hold the Constitutional power to exclude migrants and merely delegates that authority to the President, Trump’s proclamation order cannot be upheld. The President is acting directly contrary to Congress’s will, as shown by §208(a) of the INA and is therefore operating at the lowest peak of his power according to the Youngstown framework. Only able to use his inherent powers minus those of Congress, the President can clearly not sustain the proclamation order against Congress’s immigration powers. Since the President cannot support his proclamation order through his §212(f) powers or his inherent constitutional powers, it must be struck down.
Update:
As I wrote this article, a Federal Judge from the United States District Court from the Northern District of California issued a temporary restraining order to halt the proclamation order.[27] In the court’s order the court found that the President’s order “irreconcilably conflict with the INA and the expressed intent of Congress.”[28] Furthermore, the court rejected the notion that the President’s §212(f) power allows the president to override a provision of the INA.[29] Also interesting, the court argued that the §212(f) authority’s primary application is admissions, not asylum, thereby questioning the applicability of §212(f) to affect asylum generally[30]
[1] Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, White House Proclamation, https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states/ (last accessed November 21, 2018).
[2] Matter of A-B-, 27 I&N Dec. 316 at 345 (A.G. 2018).
[3] See, INA § 208(a), 8 U.S.C. 1158(a).
[4] INA § 212(f), 8 U.S.C. 1182(f).
[5]Trump v. Hawaii, 138 S. Ct. 2392 (2018).
[6] Id.
[7] Id. at 2399.
[8] The Supreme Court does identify several specific textual limits to its power. Specifically, the word “Suspend” implies that the prohibition on entry must be time limited and it must apply to a “class of aliens”. Id. at 2409-2410. These specific requirements are met by the new proclamation since it lasts temporarily for 90 days and applies to the “class” of aliens that enter the country through means other than an official port of entry.
[9] Id. at 2411.
[10] Id.
[11] Id. at 2412.
[12] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
[13] Id. at 635-538.
[14] Id.
[15] Id. at 637.
[16] Anne Y. Lee, The Unfettered Executive: Is There an Inherent Presidential Power to Exclude Aliens?, 39 Colum. J. L. & Soc. Probs. 223 at 228-229 (2005).
[17] Id. at 228.
[18] Henderson v. Mayor of New York, 92 U.S. 259, 270-271 (1875).
[19] Chae Chan Ping v. United States, 130 U.S. 581 (1889).
[20] Id. at 609.
[21] United States ex Rel. Knauff v. Shaughnessy, 338 U.S. 537.
[22] Id. at 542.
[23]Peter Margulies, Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers, 94 B.U.L. Rev. 105 at 127, (2014).
[24] Supra note 16 at 252.
[25] Id. at 241.
[26] 138 S. Ct. at 2419.
[27] East Bay Sanctuary Covenant et. Al. v. Trump, Order Granting Temporary Restraining Order; Order To Show Cause Re Preliminary Injunction, (US DC N. D. Ca.). http://apps.washingtonpost.com/g/documents/national/order-granting-temporary-restraining-order-against-trump-administration-asylum-policy/3318/ (last accessed November 21,2018).
[28] Id. at 2.
[29] Id. at 23.
[30] Id.
