The third version of the Travel Ban (“EO-3”)—also known as the Muslim Ban—added two non-Muslim countries to the list, but that by no means immunized it from legal challenge. The Supreme Court is set to hear oral argument tomorrow in Trump v. Hawaii and will ultimately determine whether the Travel Ban is a lawful exercise of presidential power. Although often overlooked amidst the outcry over religious discrimination and constitutional violations, statutory arguments likely provide the strongest legal challenge to the current ban, which is why we and immigration scholars Geoffrey Hoffman, Alan Hyde, and Karla McKanders authored an amicus brief filed with the Court that describes why our nation’s immigration laws preclude such a broad use of presidential authority.
President Trump’s third attempt to implement his Travel Ban includes sweeping entry restrictions on nationals from eight countries—Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia, and Chad (which has since been removed from the Travel Ban). According to the President, the restrictions are necessary because the named countries have insufficient “identity-management and information-sharing capabilities.” But the Travel Ban is internally inconsistent, which undermines its claimed purpose, and it is so far-reaching that it virtually rewrites key portions of our immigration laws and renders our comprehensive visa vetting system null and void.
The Government argues that provisions in the Immigration and Nationality Act (INA)—specifically, 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a)(1)—afford the President virtually unchecked power to suspend the entry of noncitizens into the United States based on their nationality or for any other reason. But as our amicus brief explains, Congress—not the President—has primary authority over admissions of noncitizens. The scope of delegated authority under those provisions can only be reconciled with the rest of the INA if those provisions are construed to apply in exigent circumstances involving diplomacy or military affairs, where the President’s power is at its peak. Yet, the President has not pointed to any exigent circumstance or other appropriate finding that would warrant the type of sweeping ban that EO-3 dictates.
Furthermore, the President’s attempt to sanitize the latest version of his Travel Ban by adding two counties that are not predominantly Muslim is ineffective. EO-3 is the progeny of prior executive actions and campaign promises that were steeped in religious discrimination. Congress took deliberate action in 1965 to remove an admissions system that was based on discrimination, and the President does not have the authority to resurrect that system via executive fiat.
Congress Has Primary Authority Over Immigration Policy—Not the President
The Constitution gives Congress primary immigration policymaking authority. Based on those enumerated powers, along with the Necessary and Proper Clause, the Supreme Court in Fiallo v. Bell concluded that “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”
Wielding that authority, Congress created a detailed immigration statute that defines the categories of people who may and may not be admitted to the United States, including expansive admission restrictions based on criminal, terrorism-related, and foreign-policy grounds. Many of those grounds already account for the concerns EO-3 purports to address. For example, the INA’s national security inadmissibility ground provides extremely broad definitions of “terrorist activity” and “engaging in terrorist activity,” granting officials broad discretion in applying those labels to render individuals inadmissible on a case-by-case basis. It would be pointless for Congress to legislate specific criteria for terrorism-related inadmissibility, while also authorizing the President to nullify those provisions by summarily excluding entire nations based on alleged terrorism concerns.
Similarly, Congress made the foreign policy inadmissibility ground extensive but imposed specified constraints. That ground applies to any noncitizen “whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States” (emphasis added). Congress carved out specific exceptions, including that a person generally should not be inadmissible based on “past, current, or expected beliefs, statements, or associations [that] would be lawful within the United States.” In so doing, Congress sought to ensure individualized inadmissibility determinations—rather than the blanket ban the President now seeks to impose.
Although the Executive Branch has the authority to create reasonable procedural requirements for entering and departing the United States under 8 U.S.C. 1185(a), that provision does not provide the President with the broad power he claims to possess. The content of the statutory provisions surrounding 1185(a)(1) indicate that it is concerned simply with regulating the use or acquisition of travel documents, not the broad-based authority the President has attempted to invoke.
The Plain Language of 1182(f) Restricts the President’s Power
The core of President Trump’s argument derives from the language of 1182(f):
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.
But this language actually demonstrates that Congress’s grant of authority to the President to suspend the entry of noncitizens pursuant to that provision is limited. To begin with, the words “suspend” and “period” in 1182(f) indicate that the provision cannot be invoked as authority for the type of indefinite ban set forth in EO-3. These terms connote temporary, finite intervals of time.
In addition, the plain language of 1182(f) requires the President to “find” that the entry of noncitizens “would be detrimental to the interests of the United States.” This requirement, which limits the President’s discretion, stands in stark contrast to other provisions of the INA, which delegate much broader grants of discretion. For example, other INA provisions instruct the executive simply to “consider” whether admission is in the “national interest”—rather than requiring a finding. The use of the word “detrimental” demonstrates that the provision applies only to exigent situations where admission would be damaging to national security, an interpretation confirmed by prior practice.
Prior Practice Confirms the Constraints on the President’s Power Under 1182(f)
Past Presidents have relied on 1182(f) in exigent situations invoking military powers or foreign affairs, which correspond to the President’s constitutional authority. These include, pressuring a foreign government to conform to U.S. policy (often as part of broader sanctions), to enforce a treaty, or to respond to a foreign coup, act of aggression, or emergency. In those exigent circumstances, the President’s power is at its zenith. In contrast, where, as here, the President attempts to restrict entry of entire classes of noncitizens in situations that do not implicate specific diplomatic emergencies or military crises, he is encroaching on Congress’s power to establish the classes of persons who may and may not be admitted to the United States, and consequently his power is at “its lowest ebb.”
When President Carter, for example, used his delegated authority under 1182(f), it was to respond to the 1980 Iranian hostage crisis. In that context, he directed the Secretary of State to invalidate and suspend the issuance of visas to Iranians, subject to limited exceptions. Restricting the entry of Iranians was just one of several measures, including ending diplomatic relations, used by President Carter to increase pressure on Iran to release hostages taken during the attack on the U.S. embassy.
Perhaps the most extensive use of 1182(f) was President Reagan’s decision to “suspend entry into the United States as immigrants by all Cuban nationals” with Proclamation No. 5517. But President Reagan issued that proclamation in response to the Cuban government’s refusal to honor an immigration agreement between the two countries, which disrupted normal migration procedures. Moreover, that Proclamation included specified exceptions for the immediate family members of U.S. citizens.
In contrast to EO-3, these prior executive actions were taken in response to specific diplomatic exigencies and therefore fell squarely within the scope of the President’s authority under 1182(f). The broad, unprompted reach of EO-3 is unprecedented and flies in the face of both the plain statutory language and past use of 1182(f).
The INA’s Nondiscrimination Provision Further Constrains the President’s Delegated Authority Under 1182(f)
The INA’s nondiscrimination clause, 8 U.S.C. § 1152(a)(1)(A), prohibits discrimination on the basis of nationality and place of birth in the issuance of immigrant visas. Introduced as part of the Immigration Act of 1965, the INA’s nondiscrimination provision was designed to remedy the “harsh injustice of the national origins quota system,” and to limit the executive’s discretion in the visa allocation process.
Although Congress did create some narrow statutory exceptions to the nondiscrimination provision, none are applicable to EO-3. Notably, Congress did not choose to exempt from the nondiscrimination provision the President’s authority under 1182(f). Additionally, none of the statutory exceptions to the nondiscrimination provision grant the President authority to create his own exceptions. Indeed, there would be no point to a law that prohibits the President from discriminating except for when the President chooses to discriminate.
While the President has the authority to suspend the entry of immigrants “detrimental to the interests of the United States” via 1182(f), he cannot establish blanket prohibitions on entry based solely on nationality. As noted, the only instances in which the executive branch has imposed nationality-based restrictions on entry to the United States—the bar to entry of Cuban nationals imposed by President Reagan and the limitations on entry of Iranians imposed by President Carter—were more limited in scope and involved discrete exigencies related to foreign affairs.
EO-3, in contrast, imposes a blanket prohibition on the issuance of immigrant visas for nationals from the named countries indefinitely, in direct contravention of 1152(a). To allow such a blanket prohibition would both undermine the visa allocation system over which Congress retains authority and would run afoul of the INA’s nondiscrimination provision.
The Purported Purposes of EO-3 Are Not Consistent with the Scope of the President’s Power Under 1182(f)
EO-3 summarily asserts that information-sharing and identity-management deficiencies in the designated countries compromise national security and that EO-3 serves a diplomatic purpose by encouraging the designated countries to improve their practices in those areas. But the Government’s purported reasons are not related to the restrictions actually imposed. As the Ninth Circuit emphasized, EO-3 “makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk” or that “the nationality of the covered individuals alone renders their entry into the United States on certain forms of visas detrimental to the interests of the United States.”
Furthermore, Congress has already accounted for variations in countries’ information-sharing and identity-management practices when deciding which countries can participate in the Visa Waiver Program. Nationals of countries that do not meet those information-sharing criteria cannot enter without a visa and must go through the regular visa application process, during which the individual applicant has the burden of proving visa eligibility, including admissibility into the United States through both documentation and an interview. EO-3 attempts to rewrite this rule by prohibiting issuance of visas to nationals of such countries. EO-3 therefore conflicts with Congress’s considered judgment as to how countries’ information-sharing and identity-management practices should impact the vetting of noncitizens for entry.
EO-3’s internal incoherencies further undermine any rationale related to diplomatic or national security. If the diplomatic purpose is to encourage foreign governments to improve their practices, it makes little sense to exclude from the ban a country like Iraq, which did not meet the baseline information-sharing and identity-management criteria, while including a country like Somalia, which has met the baseline criteria.
Similarly, EO-3 provides no explanation for why some types of visitors from a particular country are banned while others are not. If information-sharing and identity-management deficiencies generally compromise national security, it does not serve the Government’s claimed purpose to allow individuals from Yemen and Libya with nearly all types of nonimmigrant visas to be allowed entry. Nor does it serve that purported purpose to allow Iranian nonimmigrants with student and exchange visas to enter while barring all other Iranian nonimmigrants. Indiscriminately excluding certain nonimmigrants, as opposed to the previous Executive Orders’ wholesale exclusion of nonimmigrants, does not automatically render EO-3 a permissible exercise of presidential authority.
Finally, the most recent version of the Travel Ban attempts, belatedly, to correct the deficiencies of the prior executive orders, which failed to provide any “findings” and offered no nexus to any identifiable U.S. interests. However, it is still ultra vires. Although, unlike the prior orders, it does not explicitly invoke “honor killings” or other terms that stigmatize Islam, its roots cannot be ignored. EO-3 fulfills its predecessors’ promise of a permanent ban, using nationality as a proxy for religion, and thereby reveals animus and invidious discrimination not permitted by the INA.