This debate involves the constitutionality of Trump's Executive Order "Protecting the Nation From Foreign Terrorist Entry Into the United States" (the "Order"). The debate also offers statutory analysis for and against the legality of the temporary ban. Readers may weigh-in with their view.
Before jumping into the debate, there are several key elements, among others, to consider.
First, the President's authority to act. President Trump cites both his Constitutional authority as President, and authority under relevant statutes. The laws he relies on include the Immigration and Nationality Act (INA), and Section 301 of Title 3 of the United States Code.
The ban's is "to protect the American people from terrorist attacks by foreign nationals admitted to the United States." The Order states that the United States should not "admit those who do not support the Constitution." Further, the United States should not admit "those who would place violent ideologies over American law."
Third, the Order suspends visa issuance for nationals from "countries of particular concern." The countries of particular concern are Iran, Iraq, Libya, Somalia, Sudan, Syrian and Yemen. The Order also suspends entry into the U.S. for from these covered countries for 90 days.
Fourth, the Order provides a specific process for countries of particular concern. Those countries must submit certain documents mandated by the Secretary of Homeland Security. The documents should permit the Secretary to determine two things with respect to applicants from those countries. First, whether the applicants are who they claim. Second, whether the applicants are a security threat to the United States. If the Secretary is not satisfied with the documentation, then the President may issue a proclamation that prohibits the entry of foreign nationals from those countries.
Fifth, the Order establishes certain exceptions for individual refugee applicants. On an individual basis, the Secretaries of State and Homeland Security may grant visas to foreign nationals from the blocked countries. This power to grant individual visas supersedes any general ban of a country contained in a Presidential proclamation.
Sixth, the initial ban is temporary. Refugee admissions are suspended for 120 days.
Seventh, the admission of all Syrian refugees is suspended. The President cited Section 212(f) of the INA as support for this suspension. The suspension may be lifted if the President determines that changes made to the admission system are "consistent with the national interest.
Eighth, the Order sets an aggregate refugee limit for fiscal 2017 at 50,000.
Ninth, the Order affirms a case-by-case religious persecution exception for foreign nationals within the covered countries. Notwithstanding the initial immigration suspension, a person who is a religious minority facing religious persecution may be admitted. This exception applies if admitting that person enables the U.S. to conform its conduct to "a preexisting international agreement . . . and it would not pose a risk to the security or welfare" of the U.S.
And now, on to the debate . . .
The Immigration Ban is Illegal
The immigration ban is both unconstitutional. It also violates federal statutes. Here's why.
The Constitutionality of Trump's Ban - The Ban is Unconstitutional
By its terms, the immigration ban applies to only seven countries. Within those seven countries, the aggregate population is approximately 97% Muslim. In addition, the Order favors other religions under the "religious persecution" exception. A person subject to religious persecution is eligible only if his "is a minority religion" in his country of nationality. It is, therefore, available only to non-Muslims. Even though the Order does not expressly ban Muslim immigration, it does so in effect. Therefore, the government is impermissably promoting actions for one group of religions while banning actions with respect to others.
The Ban Violates the First Amendment
The Order effectively discriminates based on the religion of refugees. It is unconstitutional because it violates the First Amendment's Establishment Clause. The First Amendment provides a strict prohibition on the powers of the United States government. These prohibitions include actions that respect "an establishment of religion" or that prohibit the "free exercise thereof." The Trump ban is effectively a ban directed only at Muslims. It thereby inhibits the free exercise of their religion. Similarly, because the Order disfavors Muslims, it effectively helps establish non-Muslim religions. And further, the religious persecution exception involves the government inquiring as to the applicant's religion, an action specifically prohibited by the Establishment Clause.
The government cannot favor one religion over another religion, as the Supreme Court made clear in Larson v. Valente, 456 U.S. 228 (1982). The Supreme Court has held that an intent to discriminate on the basis of religion violates the Establishment Clause even if the intent is hidden behind religious neutrality. As they put it, "facial neutrality is not determinative.". See, for example, Church of the Lukumi Bablu Aye, Inc. v. Hialeah, 508 U.S. 420 (1993), where the Court stated "official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality."
The Establishment Clause can be seen as a structural limit on the power of the United States government. The relevant language in the First Amendment states that "Congress shall make no law . . ." This "structural limitation" perspective of the First Amendment was promoted by Justice Clarence Thomas in Town of Greece, New York v. Galloway, 572 U.S, __(2014). The analysis is that this Congressional prohibition applies everywhere (it is non-territorial) and to everyone, including non-U.S. citizens.
The Ban is Not Protected by the Plenary Power
The "plenary power" argued by the other side of this debate does not sanction violations of the First Amendment. We grant that the Supreme Court recognizes the plenary power of the other branches of government to exclude non-citizens from the United States. The Court's view is based on the notion that those branches reign supreme over national security and territorial sovereignty matters.
But the breadth of the plenary power has eroded. In most of the Supreme Court cases applying the plenary power, the Court applied a "rational basis" standard. The Court effectively defers to Congress and the President if they can articulate any rational basis for their action. Most of these rational basis cases are very old. Beginning in 1971, the Court expressed a willingness to apply a greater scrutiny standard to immigration cases. Although it continued to grant more deference in immigration cases than in other areas, the leading deference examples are over 40 years old.
In 2001 the Court stated that the plenary power is subject to constitutional limitations. It applied due process requirements on the government's power to detain non-citizens who were ordered removed indefinitely. See Zadvydas v. Davis, 533 U.S. 678 (2001). This case is an illustration of the erosion of the the plenary power doctrine. The application of the doctrine in the context of the Trump ban is uncertain.
We argue further that even if he plenary power doctrine applies, other Constitutional infirmities exist. The plenary power does not protect the government if the Establishment Clause is a structural limitation on the government's power. There is no precedent to support the view that Congress may violate this structural limitation in an immigration context.
The Ban Violates the Immigration and Nationality Act of 1965
Discrimination against immigrants on the basis of national origin is prohibited under the Immigration and Nationality Act of 1965 (the "INA"). Under the INA Congress provided that "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place or residence."
In September, 1993, the State Department began requiring Vietnamese nationals who desired a U.S. visa, and who had fled to Hong Kong, to return to Vietnam to apply for the visa. In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, the U.S. Court of Appeals for the District of Columbia invalidated the policy. Citing the INA, the court stated "Congress could hardly have chosen more explicit language" prohibiting discrimination on the basis or nationality. The government argued that if it has a "rational basis" for the distinction the statute is satisfied. The court rejected that argument. The court added that an exception under the INA was justifiable only if it was compelling. The court cited a "national emergency" as a compelling justification.
The current ban is a clear violation of the discrimination prohibition contained in the INA. Indeed, relevant data indicates that no death has occurred in the United States as the result of an act of terrorism by any citizen of the seven banned countries. The government cannot establish that a national emergency exists in the current context.
The Immigration Ban is Legal
The immigration ban is constitutional and does not violate federal immigration statutes. Here's why.
The Constitutionality of Trump's Ban - The Ban is Constitutional
Supreme Court precedent provides that, under the Constitution, the President has wide latitude regarding immigration. Where national security is at risk, he essentially has a free hand. President Trump's immigration ban is permissible under the plenary power doctrine. Further, it is settled that immigrants have no rights under the First Amendment
The Ban is Constitutional Under the Plenary Power Doctrine
The immigration ban is constitutional under the long-standing plenary power doctrine. It is well established by the Supreme Court that constitutional protections do not apply to non-citizens who wish to enter the United States.
The plenary power doctrine was first articulated by the Supreme Court in an 1889 in a case. The Supreme Court upheld the government's exclusion of Chinese laborers from the United States simply because they were Chinese. Although some would find this result immoral, this precedent has remained in place for over 120 years. The Court has consistently held that immigration statutes are constitutionally firm even if they discriminate on the basis of national origin, political belief, or race. The Court has continued to recognize that Congress and the President have wide authority with respect to immigration law.
In Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court firmly articulated the plenary power standard:
Plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [a statute], Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests . . . "
Although there are reasonable moral and political arguments against the temporary ban, under the Constitution aliens have no right to demand entry into the United States. Moral and political arguments carry no sway with respect to the plenary power doctrine.
The President has articulated a clear national security reason for the temporary ban, which makes the ban constitutionally unassailable under the plenary power doctrine. Some have pointed to data indicating that no terrorist attack on U.S. soil has come from an individual from any of the seven subject countries. But that ignores the reality that terrorist attacks in Europe have come from individuals posing as refugees. That reality is sufficient to support the President's national security concern.
Arguments Under the First Amendment Simply Do Not Apply.
The Court has regularly held that aliens have no rights under the Constitution. See, for example, Shaughnessy v. Mezei, 345 U.S. 206,210 (1953); Mahler v. Eby, 264 U.S. 32, 40 (1924). Going back to 1904 the Court has held that aliens do not have First Amendment rights to free speech, and the Court reiterated this as recently as 1990 in U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Under the same reasoning, the First Amendment religious liberty rights would also be unavailable to aliens.
As a result, discrimination against aliens due to their nationality is constitutionally valid, as more recent Court decisions make plain, even though they would be unconstitutional under the Equal Protection clause if they involved U.S. citizens.
In sum, immigrants requesting entry into the United States do not have rights under the Constitution. The "structural limitation" suggested by the other side of this debate has never been applied by the Court.
The Ban Does Not Violated the Immigration Laws
We believe that the constitutional analysis described above settles the issue in favor of the President. Nevertheless, we consider the argument raised by the other side of this debate that the ban is impermissible under the 1965 INA. That law banned all discrimination "in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." The purpose of that statute was to end racially and ethnically discriminatory national origin practices that favored Europeans. However, the Trump ban does not affect, and is not directed at, the racial or ethnic composition of immigrants. Instead, the ban's specific and express purpose is to protect national security. Therefore, the ban does not violate the 1965 INA.
The other side of this debate ignores the provision in the 1952 immigration statute where Section 1182(f) states as follows:
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 be proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Trump's ban falls squarely within this statutory language. The Order suspends entry of a class of aliens under circumstances the President determined to be in the interests of the United States. In fact, in the Order the President cited his reliance on Section 1182(f).
The 1965 INA statute relied on by the other side of this debate post-dates Section 1182(f). Therefore, an argument could be made that the subsequent statute, prohibiting discrimination, supercedes section 1182(f). But this argument fails due to Section 1187(a)(12) of the immigration law, enacted during the Obama era. This most recent statute authorizes discrimination in the visa waiver program based on the national origin of certain applicants.
That statute permits discrimination with respect to any country where the State Department designates the government as having "repeatedly provid[ed] support for acts of international terrorism." Accordingly, the Obama era statute, the latest Congressional statement on discrimination in immigration, expressly permits discrimination. It has effectively amended the 1965 statute.
Discrimination on the basis of religion does not exist under the Trump ban. The Order is not a ban on Muslims. Approximately 14% of the world's Muslim population live in the seven subject countries. Accordingly, the Order has no impact on 86% of the world's Muslim population. The State Department designates three of those seven countries (Iran, Syria and Sudan) as state sponsors of terrorism. The President therefore has a clear national security basis for the ban, as articulated in the Order itself.
In addition, the religious exception in the Order is not discriminatory. It is not applicable only to non-Muslims. Indeed, there are many branches and schools of Islam. For example, in Iran, approximately 90-95% of Muslims are Shi'a while the remaining 5-10% are Sunni, and among those Sunnis there are various sects including Kurds, Turkomen, Baluchs and Larestani. By definition, Sunni are a minority in Iran, and the various sub-sects of Sunni are even smaller minorities. Under the Order, individuals in those sects who are subject to religious persecution may apply for religious refugee status in the United States.
On these bases, the constitutionality of Trump's Order is established. It is also statutorily sound.