If the Supreme Court approves President TrumpDonald TrumpGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Super PACs release ad campaign hitting Vance over past comments on Trump Glasgow summit raises stakes for Biden deal MORE’s travel ban, he will likely consider himself free to dismantle our entire structure of immigration law unilaterally. He has said so repeatedly in recent weeks, even warning on May 5 that “we may have to close up our country to get this straight.”
Indeed, these threats repeat the claims of unlimited presidential power that the Justice Department has made in the litigation over Trump’s travel ban, which was argued before the Supreme Court on April 25. The Justice Department told the Supreme Court that a president can ban all aliens, or any group of aliens, simply by asserting national security as the reason for doing so. Trump’s threats made after the April 25 oral argument reveal what a historic mistake it would be for the Court to embrace Trump’s claim that he can rewrite America’s immigration laws with a single stroke of his pen.
President Trump’s power grab is both unprecedented and violates the separation of powers. Our Constitution gives Congress the authority and responsibility to write U.S. immigration law. The president is responsible for executing those laws, but Congress cannot give, and has not given, a president the power to rewrite the immigration laws singlehandedly.
President Trump’s travel ban does not simply fill a gap in the law; it rewrites the law itself. Specifically, between September 11, 2001, and December 2015, Congress repeatedly rejected adding nationality bans to the anti-terrorism provisions of our immigration and travel statutes. Instead, Congress decided that, when a country poses national security problems because it sponsors terrorism or is fighting local terrorists, nationals of that country must apply for a visa, undergo extensive vetting, and bear the burden of showing that they qualify for that visa.
The statutes further state that every applicant for a visa will be interviewed by a U.S. consular official and that the State Department should deny non-immigrant visas for Iranian and Syrian nationals who “pose a threat to the safety or national security of the United States.” Congress also left intact an express statutory provision enacted in 1965 that forbids denying an immigration visa based on nationality.
President Trump’s travel ban conflicts with all of these specific statutory provisions. It bans visas based on nationality and without interviews, and it bans non-immigrant visas for the many Syrians and Iranians who do not pose a national security risk.
Even assuming President Trump had statutory power to suspend entry based on nationality temporarily, he could not, under our immigration laws, do so indefinitely. The statute on which Trump relies limits his unilateral power to “suspend” entry “by proclamation” to “such period as he shall deem necessary.” It’s reasonable to interpret the “period” that is “necessary” as referring to the time it would take the president to propose, and Congress to consider, changing the specific laws that permit entry. After more than 15 months in office, President Trump has not proposed any travel ban to Congress; and what began as a supposed emergency “suspension” has become in reality a permanent ban.
Even if President Trump did not go so far as to “close up our country,” he recently has indicated how he is to dismantle key components of our immigration law unilaterally if the Supreme Court enables him to do so. On April 28, he told a rally that the United States has “the dumbest immigration laws on Earth.” On May 4, he characterized our immigration statutes as “laws that were written by people that truly could not love our country.” On May 9, he berated his Secretary of the Department of Homeland Security, Kirstjen NielsenKirstjen Michele NielsenFar-left bullies resort to harassing, shaming Kyrsten Sinema — it won't work Ex-Trump official: 'No. 1 national security threat I've ever seen' is GOP Left-leaning group to track which companies hire former top Trump aides MORE, at a cabinet meeting, reportedly for following existing statutes, and the next day told a rally that the United States has “the worst immigration laws in the history of mankind.”
The Supreme Court, over the generations, has faced many challenges of reconciling assertions of national security with the rule of law. When the Court, in the now-reviled Korematsu v. United States, upheld the internment of Japanese-Americans during World War II, the widely revered Justice Robert Jackson dissented. He wrote that:
“Once a judicial opinion… rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle…. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forth a plausible claim.”
Justice Jackson’s words ring true today. President Trump has told us how he’d use the principle that a president has broad and unilateral power to ban immigration and travel, notwithstanding statutory provisions that permit entry. He signaled he would use this “loaded weapon” to “close up our country” or, at least, unilaterally override “the worst immigration laws in the history of mankind.”
Nothing in the Constitution or any statute passed by Congress compels the Supreme Court to hand this loaded weapon to President Trump and all future presidents. To the contrary, it’s now up to the Court to defend the Constitution and the laws enacted by Congress and deny Trump’s overreach on immigration. If not, President Trump has told us the travel ban would be only the beginning.
Richard Bernstein, a Washington D.C. lawyer, authored an amicus brief in the Supreme Court opposing the travel ban joined by William Webster, Thomas Kean, John Danforth and nine other former Republican elected or executive branch officials. From 1987-1988 he was a Supreme Court law clerk.