Should the Supreme Court Run U.S. Immigration Policy?

In Wednesday’s oral arguments in Trump v. Hawaii, the case involving the third version of President Trump’s “travel ban” on immigrants from certain countries, the Supreme Court tried to pin down a great deal of evasiveness about a simply worded statute, and, in the end, fundamental questions about judicial supremacy.

On September 27, President Trump issued an executive order and proclamation indefinitely suspending entry into the country from six Muslim-majority countries—Iran, Libya, Syria, Yemen, Somalia, and Chad—and two non-Muslim-majority countries—North Korea and Venezuela. The 20-page proclamation, which includes specific findings with respect to each country, has the purpose of “detecting entry into the United States by terrorists or other public-safety threats.”

Two previous versions of the proclamation had generated a great deal of public controversy, and the third was no exception. None of the three proclamations have included the words “Muslim” or “religion,” but, nevertheless, all have been extensively portrayed as being motivated by the president’s alleged antagonism to Muslims. And federal district and appeals courts have not hesitated to add fuel to that fire. For example, the federal district court in Hawaii ruled that the second order “was issued with a purpose to disfavor Muslims.” This week’s oral arguments came to the Supreme Court from the decision of the Ninth U.S. Circuit Court of Appeals, which imposed a “worldwide” injunction against enforcing the president’s order and proclamation.

President Trump issued the proclamation pursuant to a provision, 8 U.S.C. 1182(f), entitled “Suspension of entry or imposition of restrictions by President,” of the Immigration and Nationality Act (INA) that by its explicit terms bestows an extraordinary degree of executive power on the president to deal with national-security and foreign-policy emergencies and exigencies involving immigration:

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. (emphases added)

In defense of the proclamation, Solicitor General Noel Francisco opened his argument yesterday by pointing to the law and stating “the proclamation reflects a policy and national security judgment that falls well within the president’s power under 1182(f) and has been successful, which is why the country of Chad has been dropped from the list.” Justices Ruth Bader Ginsburg and Sonia Sotomayor pointed out that Congress had written sections of the INA listing specific rationales for excluding aliens and also allowing certain waivers to exclusion. But, like the Ninth Circuit in its decision, neither justice seemed willing to concede that Congress had also written section 1182(f) granting the power to the president to protect “the interests of the United States” as “he may deem to be appropriate.”

Francisco downplayed the full extent of the power granted to the president by section 1182(f). Instead, he repeatedly emphasized that the secretary of Homeland Security had recommended the proclamation to the president after a “worldwide multi-agency review applying neutral standards.” As for Trump’s campaign statements about Muslims, Francisco, replied that a politician is a private citizen before he takes office and that the only statements after the oath of office is taken are “constitutionally significant acts.” He argued that any such statements by President Trump do not “address the meaning of the proclamation itself,” which “excludes the vast majority of the Muslim world” and “omits Muslim-majority countries that were covered by past Orders.”

Neal Katyal, an Indian immigrant, specialist in immigration law, and a private lawyer at a Washington law firm, spoke for the state of Hawaii. He argued essentially that Congress, in enacting the INA, had already considered the issues presented in the proclamation and chosen to address those issues by establishing an immigration system whereby potentially dangerous aliens had to go through an “individualized vetting process,” with the result that there could be no bans on admission into the country based “on nationality discrimination.” The president, he said, had violated the separation of powers and contravened these legislative decisions of the Congress.

Throughout his presentation, Katyal more or less denied the plain words of section 1182(f) which empower the president to act about “any class” of aliens. He wanted to take up the argument that President Trump intended to discriminate against the Muslim religion in violation of the Establishment Clause, but the justices never allowed him to develop that position. The Ninth Circuit had heard extensive arguments on the Establishment Clause issue but had declined to rule on it.

Chief Justice John Roberts repeatedly challenged Katyal as to when and how a president could act in an emergency in the field of immigration law if section 1182(f) did not allow him to do so. And Justice Anthony Kennedy followed that inquiry up by asking whether it is the province of the courts “to review whether or not there is such a national contingency” about immigration. Katyal’s answer was that potentially dangerous aliens seeking admittance should be “individually vetted,” and if that does not prove feasible on a large scale, to go back to the Congress with proposed legislative changes.

Justice Samuel Alito asked “whether any reasonable observer reading this proclamation” could “think this was a Muslim ban?” He said that there are 50 Muslim countries in the world but only “five predominantly Muslim countries are on this list.” Justice Neil Gorsuch wondered how and why a lower federal court could issue “a cosmic injunction” in the area of immigration and why domestic third parties should be allowed “to assert the rights of aliens who are not present in this country.”

In his rebuttal, Francisco clarified what the law has to say about the supposed “ban on nationality discrimination.” He flatly stated that there is no such thing. A certain provision of the INA, 8 U.S.C. 1152(a)(1) bans discrimination concerning “the issuance of immigrant visas,” he said. “It doesn’t address the broader question over whether somebody is allowed to enter in the first place.”

Indeed, Francisco could have elaborated that a “visa” is a temporary pass to enter the country. It does not allow a person to become a permanent resident. And it is issued only after the approval of a petition, which is subject to other provisions of the INA like section 1182(f), by a family member or other legal sponsor.

Katyal eventually conceded that he “could imagine an emergency situation” in which section 1182(f) would allow the president extra powers, but he repeatedly argued that in this case it had been “460 days” since President Trump had issued the proclamation, and that no emergency had occurred. Overall, then, the state of Hawaii has proclaimed that it knows and will define the criteria for, and length of, a foreign-policy emergency and that the Supreme Court should do the same.

Photo credit: Andrew Caballero-Reynolds/AFP/Getty Images

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About Thomas Ascik

Thomas Ascik retired after nearly three decades as an assistant United States attorney.

Photo: Activists rally against the Muslim Ban on the day the Supreme Court hears arguments in Hawaii v. Trump in front of the court in Washington, DC on April 25, 2018. - President Donald Trump's effort to ban immigrants from several Muslim-majority countries heads to the Supreme Court Wednesday, which will decide if his argument asserting national security interests was tainted by religious bias.The case, known as Trump v. Hawaii, will address the president's broad powers to set immigration policy, which the administration says permit Trump's travel ban, one of his hallmark policies since taking office in January 2017. (Photo by Andrew CABALLERO-REYNOLDS / AFP) (Photo credit should read ANDREW CABALLERO-REYNOLDS/AFP/Getty Images)