Originalism and Trump’s Travel Ban (Part I)
In this post and a second one, I will consider originalist approaches to the constitutionality of the President's ban on travel to the U.S. by citizens of seven foreign nations. The first step (which I will address in this post) is to find a constitutional source for the President's power. The second step (addressed in the next post) is to ask whether any of the Constitution's individual rights provisions limit that power in ways relevant to the travel ban.
One might suppose that the source of the President's power is easily identified: authorization by statute, specifically 8 U.S.C. 1192(f). (See this extensive discussion of the statutory issues by Josh Blackman). But the matter is not so easy, because then we must find a constitutional source for Congress' power, and that source is not obvious.
In the modern era, courts have said that Congress has essentially plenary power over the admission of aliens to the United States. The plenary power doctrine is doubtful on originalist grounds, however, as the Constitution’s text does not convey such a power expressly, and the roots of the modern plenary power doctrine lie in late-nineteenth-century ideas about inherent powers of sovereignty that do not claim to have a basis in the Constitution’s original meaning. (See Chapter 4 of International Law in the U.S. Supreme Court). An originalist approach to thinking about the travel ban would need first to identify something in the Constitution to give Congress power in this area.
There are three main positions. One is that the Constitution itself contains the idea of inherent national sovereignty, and implicitly conveys such sovereign powers on the federal government, principally on Congress through the necessary and proper clause. This is somewhat different than the nineteenth-century idea of sovereign powers, which were admitted to be outside the Constitution, but it likely leads to similar results: a comprehensive congressional authority over admission of aliens.
In contrast, some scholars – notably Ilya Somin – deny that the federal government has comprehensive power over aliens; in this view, Congress can exercise power over aliens only through its expressly enumerated powers, and those powers provide sharply limited and incomplete power of exclusion. The founding design and assumptions instead were that states would principally address issues related to aliens. (Professor Somin will be presenting a paper defending this view at the upcoming originalism works-in-progress conference in San Diego).
An intermediate position holds that Congress’ power over aliens must indeed rest on enumerated powers (or actions necessary and proper to effectuate enumerated powers), but that its enumerated powers – principally the commerce power and the naturalization power – are broad enough to add up to effectively comprehensive power.
I have, at least tentatively, a different view. None of the leading views seems satisfactory. The first, inherent powers, is inconsistent with the Tenth Amendment, with the design of enumerated powers, and with numerous statements and assumptions of the founding era about the sources of congressional power. (See Chapters 1-2 of The Constitution’s Text in Foreign Affairs). The third position may depend on an unduly broad reading of enumerated powers, in particular with respect to aliens traveling for neither commercial nor immigration purposes. And the second position seems implausible as a matter of design, at least with respect to aliens from hostile or potentially hostile nations.
My view instead is that admission of aliens may, in the first instance, be an executive power. It was so understood under eighteenth-century English law, as part of the English monarch’s power over foreign relations; theorists such as Montesquieu, who described the “executive” power as including foreign relations power, probably would have included admission of aliens within the powers of dealing with foreign nations. That is especially so as the power of admission is connected to national security, again associated with executive power.
Of course, the American framers did not assign all of the monarch’s foreign affairs power to the President (they specifically excluded or limited, for example, war power and treatymaking power). But the Constitution does vest the President with “the executive Power,” and I have argued at length that this vesting includes foreign affairs powers that were historically understood as executive and that were not assigned elsewhere by the Constitution’s text. Although various objections have been raised to this reading, I find none of them persuasive (see here for some responses). On this theory, one could argue that admission of aliens, an executive foreign affairs power not assigned elsewhere in the text, is a presidential power.
Both the executive branch and Supreme Court do to some extent identify exclusion of aliens with executive power. In the travel ban case, the President’s executive order refers to powers granted to the President by both statutes and the Constitution, and the Justice Department's briefing in the case (summarized well here by Byron York) also seems to lean heavily on independent executive power in addition to congressional authorization. In a key case, Knauff v. Shaughnessy (1950), the Supreme Court said: "The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation."
The problem for originalists is that the Court in Knauff followed that statement with a citation to the much maligned (by originalists) Curtiss-Wright case, which associated executive power in foreign affairs with extraconstitutional powers. And Curtiss-Wright has been a long-time favorite of the executive branch. So modern arguments for finding an executive power over admission of aliens likely rest on Curtiss-Wright. And no originalist, in my view, should rest anything on Curtiss-Wright.
But the theory of executive power in foreign affairs shows how some of Curtiss-Wright's claim for executive foreign affairs power can be grounded on the Constitution's text and original meaning, despite Curtiss-Wright's failure to do so. Not all of Curtiss-Wright can be so defended, and I have identified various areas that cannot (for example, attempts to make executive agreements and executive policy preemptive of state law, see here). Admission of aliens, however, seems a reasonable candidate to include within the President's constitutionally vested executive power. (Andy McCarthy makes the point briefly here).
If that's correct, it in turn provides a grounding for Congress' power to legislate regarding the exclusion of aliens. Congress' "necessary and proper" power includes not just laws necessary and proper for carrying into execution its own enumerated powers, but also for "carrying into Execution ... all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That includes powers vested in the President -- and thus, by the theory developed above, the power over admission of aliens. Thus Congress does have comprehensive power to legislate regarding admission of aliens, as modern cases have said, but the originalist case for it is more complicated than modern law has recognized.
Of course, this is just the first step of an originalist analysis. Even if the President's order is based on executive foreign affairs power, Congress could limit it in the exercise of its own enumerated powers. And the President’s constitutional powers are limited by Constitution’s guarantees of individual rights. I’ll turn to the latter issue in a second post.