Thanks 9th Circuit for affirming president must respect Congress’s immigration authority
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As recognized by the Supreme Court in the famous Chinese Exclusion Cases, Congress possesses very broad powers in setting immigration policy. Through the Immigration and Nationality Act (INA), Congress has directed the Executive Branch to implement immigration policy.

This week the Ninth Circuit Court of Appeals determined that the president exceeded his authority by issuing an Executive Order (EO) that did not respect the very statutes Congress enacted.

This unanimous federal appellate panel’s analysis is pretty straightforward. One of the major statutory provisions relied on by the president states that the president can suspend the entry of immigrants based on a finding that such entry would be detrimental to the interests of the United States. The court determined that the President’s findings were insufficient. Why?

First, the Court observed that the executive order would ban more than 180 million people from entry based on their national origin, including nationals who may have never been physically present in those countries. To support this entry ban, the EO asserted the need to preserve government resources and to ensure that adequate standards are established to conduct adequate vetting.

 

The EO did not find that present vetting standards are inadequate, nor did it find that, absent improved vetting procedures, U.S. national interests are likely to be harmed. Accordingly, the Court found that the EO’s reasons do not support the conclusion that the entry of nationals from the six countries would harm national interests.

The EO also asserted national security concerns as warranting the travel ban. The EO explained that each of the six countries either sponsored terrorism, was significantly compromised by terrorist organizations, or contained active conflict zones, diminishing the willingness or ability of these governments to share information about their citizens with the U.S., and increasing the chances of terrorists traveling to the U.S.

The EO made no finding that nationality alone renders entry of this broad class of people, which includes children, women and grandparents, a heightened security risk to the U.S. The order does not tie these nationals to terrorist organizations within these countries or provide any link between someone’s nationality and their propensity to commit terrorism. That’s why the Court found that the EO does not provide a rationale as to why entry of nationals from the six countries under current vetting procedures would be detrimental to the interests of the U.S., as required by the statute.

Further, the Court found that the EO did not provide adequate findings for determining that the world’s premier refugee resettlement program (America has rescued more than three million refugees since Congress passed the 1980 Refugee Act) needed to be shut down for 120 days.

Experts have made it clear that refugees are screened more carefully than any other foreign-born person who comes to the U.S., and that there is no evidence that this screening process is deficient. With regards to justifying the EO’s cut of 60,000 of the Congressionally agreed upon 110,000 refugees for FY 2017, the Court also found that the EO made no findings whatsoever that entry in excess of 50,000 would be detrimental to the interests of the United States. The Court also found the President did not comply with the statutory requirements established in 1980 governing the admission of refugees in restricting entry via the EO.

Another Congressional statute featured large in the Court’s analysis: the immigrant visa non-discrimination provision with respect to nationality, enacted in 1965 when Congress put an end to the national origins quota system that had highly favored Western and Northern European nationalities.

After the United States and its allies defeated Hitler and the Nazi Aryan master race ideology, Presidents Truman, Eisenhower, and Kennedy each asked Congress to end the discriminatory immigration laws established initially in 1921. Congress did so in 1965 and also put in place an important non-discrimination provision. The Court found the EO to be in conflict with this provision that protect immigrants seeking visas from discrimination based on nationality.

In short, the Ninth Circuit concluded that Congress granted broad but not unlimited powers to the president, and that the president must operate within the confines of Congress’s statutory directives. Through the EO, the president took measures that were incompatible with the expressed will of Congress. To underscore the profound nature of the President’s extreme assertion of authority over immigration, the Court quoted from the Supreme Court’s famous Youngstown decision, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The Court found the EO unprecedented in its scope, purpose and breadth. Presidents have restricted entry of nationals of certain countries on the basis of affiliation or culpable conduct. Many presidents have restricted the entry of corrupt government officials as well as human rights violators from certain countries. No President has ever restricted the entry of such broad classes of people from any single country, let alone six as attempted through the EO.

Importantly, the Court also determined that the federal district court judge erred in enjoining the parts of the executive order regarding internal Executive branch operations and procedures. In particular, the EO requires various agencies to conduct a review of vetting procedures and recommend additional ways to protect the security of Americans. This part of the EO is back up and running, as it should be.

In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”


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