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12/28/2017

Josh Blackman on the President's Immigration Powers
Michael Ramsey

At Lawfare/Josh Blackman's Blog, Josh Blackman: The Ninth Circuit Previews Why Article II Will Save The Travel Ban.  From the introduction:

In invalidating the latest iteration of the travel ban, known as the Proclamation, the Ninth Circuit Court of Appeals reached an important question of first impression: whether the policy could be supported by the President’s independent Article II  authority. The Hawaii v. Trump panel held that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” This conclusion is the most important sentence in the entire 77-page opinion. If the president has the inherent power to deny entry to aliens, then the court’s Immigration and Nationality Act (INA) analysis is largely superfluous. If he lacks such a power, then the Ninth Circuit’s statutory analysis would hold up on appeal.

Professor Blackman relies principally on  (1950) to conclude that the President has such an inherent power: 

Through a 1941 law, Congress gave the president the power to issue a proclamation, which would have the effect of rendering “unlawful” the “entry into the United States” of certain aliens when “the President shall find that the interests of the United States require that restrictions.” In other words, Congress permitted the president to effectively amend the statutory grounds for inadmissibility. President Roosevelt issued such a proclamation, which ordered that “no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This open-ended language is very similar to 8 U.S.C. 1182(f), which would be enacted a decade later.) Pursuant to this proclamation, the Attorney General promulgated the regulations that denied Knauff’s entry into the United States. On appeal to the Supreme Court, Knauff argued that the “1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power.”

The court rejected this argument, explaining that the power at issue in the 1941 act was not a legislative power at all; it was an inherent executive power. “The exclusion of aliens is a fundamental act of sovereignty,” Justice Sherman Minton stated. “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.” Thus, there cannot be a violation of the non-delegation doctrine, because Congress is not delegating legislative power at all. The court supported this argument with a citation to , which also rejected a non-delegation doctrine challenge because the President was exercising his exclusive powers concerning foreign affairs.

What was the 1941 act doing then, if not delegating legislative power? “When Congress prescribes a procedure concerning the admissibility of aliens,” the court explained, “it is not dealing alone with a legislative power.” Rather, “[i]t is implementing an inherent executive power.” In the normal course, the court noted, “Congress supplies the conditions of the privilege of entry into the United States.” However, “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power.”

I think this is probably right as an original matter as well.  First, there's no textual indication that Congress has plenary power over admission of aliens.  Congress has no express power over admission of aliens; several of Congress' enumerated powers may allow partial control over admission of aliens, and those powers combined may come close to full control as a practical matter.  But that does not seem sufficient to support an exclusive power.  Second, as I've argued in multiple places (but initially here), the President's executive power vested by Article II, Section 1 included traditionally executive foreign affairs powers to the extent such powers were not vested in Congress by the Constitution.  Third, it seems likely that the power to exclude aliens (especially the power to exclude aliens considered to be a threat to national security) was a traditional executive power.  Although I've not done the research necessary to say for sure, it seems likely that the English monarch had broad power to exclude aliens, at least absent a contrary direction from parliament.  If that's right (and I'd be very surprised if it isn't), and since the text does not give Congress a direct power over admitting aliens, that power should be understood as vested in the President by Article II, Section 1.  That's more-or-less where Knauff v. Shaughnessy comes out, although the Court's majority rested too much on "inherent" power and not enough on the Constitution's text for an originalist to endorse the opinion.

(Thanks to Mark Pulliam for the pointer).