While the liberal media has condemned Donald Trump’s call for a ban on Muslim immigrants as “disqualifying” and “toxic,” former President Barack Obama may have only himself to blame as President Trump succeeds in putting his plan, or some version of it, into action.
In his efforts to work around Congress, Obama has made the aggressive use of executive power, particularly on immigration, an increasingly effective and politically accepted presidential tool. While legal scholars are divided on whether Obama has accelerated or merely continued a drift of power toward the executive branch, there’s little debate that he’s paved a path for his successor.
Depending on who that is, many Obama backers could rue the day they cheered his “pen-and-phone” campaign to get past Republican opposition in Congress. The unilateral steps he took to raise environmental standards, tighten gun control measures and ease the threat of deportation for millions of immigrants in the U.S. illegally, serves as precedent for moves they won’t cheer.
“You know the great thing about executive orders, I don’t have to go back to Congress,” Trump said recently at rally in Manassas, Va.
“We’re unsigning a lot of executive orders, especially his order that basically lets anybody they want just pour into our country,” Trump said. “That’s going to end.”
And Trump’s plan is backed by much precedent and long standing legal definitions.
Under U.S. Code, the president does have the statutory authority to keep anyone out of the country, for any reason he thinks best. Per 8 USC §1182:
“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 by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Any such blanket action based on a person’s religion would be unconstitutional if applied to U.S. citizens, scholars agree.
But courts have given Congress and the president wide discretion when it comes to immigration.
No less an authority than Supreme Court Justice Antonin Scalia has said it is naive to think the country would never again resort to such harsh measures, particularly during wartime.
“That’s what was going on – the panic about the war and the invasion of the Pacific and whatnot. That’s what happens,” Scalia said on a visit to Hawaii in 2014, describing the mood in America following Pearl Harbor that led to the internment camps. “It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.”
“I don’t actually think it would be unconstitutional. The president has a huge amount of discretion under the immigration statute,” said Eric Posner, a constitutional law professor at the University of Chicago. The same protections given citizens do not apply to people who are neither American nor in the United States, Posner said.
Posner pointed out that the Supreme Court “has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants.”
He said while the court hasn’t ruled specifically on religious discrimination, “it has also never given the slightest indication that religion would be exempt from this general rule.”
Courts have upheld the denial of visas to enter the country to Marxists and people born to parents who were not married, among many categories. The Supreme Court has never struck down an immigration classification on the basis of race or any other reason, said Temple University immigration expert Peter Spiro.
We asked Stephen H. Legomsky, of Washington University School of Law, who was chief counsel at the U.S. Citizenship and Immigration Services agency under President Barack Obama from 2011 to 2013. Most recently the professor served briefly as senior counselor to the Secretary of Homeland Security on immigration issues.
He referred to the plenary power doctrine that “states that the courts should show exceptional deference to Congress when it legislates in the field of immigration,” Mr. Legomsky told Law Blog. It was first laid down by the Supreme Court in the late 1880s when justices upheld the Chinese Exclusion Act, a federal law that suspended immigration of Chinese laborers.
Prof. Eugene Volokh of UCLA—one of the top First Amendment scholars in America—says about this proposed ban that there are no limits on Congress’s power over immigration, per the Supreme Court’s earlier cases (even though he also called Trump’s proposed policy an “abomination”). Prof. Eric Posner of the University of Chicago is less confident in predicting an outcome, but says the ban would probably be upheld by the courts.
There are legal challenges that have been raised by some lawyers, but all of these fail. Some say it violates the Religious Test Clause of the Constitution, but that says only that people seeking federal office cannot be denied public office because of their religion.
In fact, the Legal Information Institute at Cornell cites this provision of federal law:
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 by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
“I would add that, in Kleindienst v. Mandel (1972), the Supreme Court applied the ‘plenary power doctrine’ to the exclusion of people based on their political beliefs, despite the Free Speech Clause. The cases that Posner is referring to, together with Kleindienst, suggest that the exclusion of people based on their religious beliefs is likewise constitutional.”
He noted that, “at this point, the precedents counsel in favor of the constitutionality of such a rule.”
Posner pointed out there even is a precedent for Trump’s idea.
“In 1891, Congress passed a statute that made inadmissible people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who ‘who admit their belief in the practice of polygamy.’ While Congress later repealed the latter provision (the former seems to be still on the books), no court – as far I know – ruled it unconstitutional.”
He said it’s clear, “The plenary power doctrine is universally loathed by scholars and some have argued that it is effectively a dead letter. But any honest answer to a journalist’s question about whether Trump’s plan to ban Muslim immigration is unconstitutional should start with the plenary powers doctrine, and observe that it would be an uphill battle to persuade the Supreme Court to abandon a century of precedent.”
He said it’s unfortunate that scholars – “who certainly know better” – are telling journalists who don’t like Trump’s ideas what they want to hear.
“Not everything that is stupid or offensive is unconstitutional,” he said.
The high court has reaffirmed the doctrine in a 1972 ruling denying entry to a self-described “revolutionary Marxist” from Belgium who sought a temporary visa.
UCLA law professor Eugene Volokh told Law Blog that Mr. Trump’s plan “may be a very bad idea, but under the plenary power doctrine it may very well be constitutional.”
It doesn’t appear that Mr. Trump would have to get congressional approval before advancing the Muslim ban, said Temple University law professor Peter Spiro. Congress has already given the president broad powers to suspend the entry of “any class of aliens as immigrants” if their entry would “be detrimental” to the nation’s interests.
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