Let's talk about the POTUS, "sovereign prerogative" and the constitutional rights of foreigners

[Snowboarder_Bo]

[

The Justice Department has appealed a judge’s order blocking his [(President Trump’s)] travel ban at the 9th U.S. Circuit Court of Appeals in San Francisco, citing the “sovereign prerogative” of a president to admit or exclude aliens.

The appeal says it’s a basic principle, that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”

](http://bigstory.ap.org/article/latest-qatar-airline-allowing-muslims-travel-us)
Does the POTUS have “sovereign prerogative” regarding immigration/visitation? AFAIK he does not. And frankly I’m not sure that the POTUS should have that power.

Anyone wanting to discuss/debate the 2nd sentence is more than welcome, but my own interest lies more with the assertion that the POTUS has some kind of special powers where they can just dictate things with regard to immigration/visitation and whether or not this is something desirable or a good idea.

Relevant Wikipedia article: Royal prerogative - Wikipedia

[Bricker]

The federal government definitely has exclusive power over immigration. See Chae Chan Ping v. United States, also known as the Chinese Exclusion Case. It also established the principle of consular nonreviewability: decisions by the US consul abroad about admissions are generally unreviewable by the judicial system. This was upheld just last year, in Kerry v. Din.

But the power to write the rules belongs to Congress, not the President.

However, Congress may delegate this power to the President.

Congress has:

Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power. But there is no question of inappropriate delegation of legislative power involved here. 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. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive.

Quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). In other words, it’s a power of Congress that may be lawfully delegated to the President.

However, the ultimate power rests with Congress, not the President; see Galvan v. Press, 347 US 522 (1954):

But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.

So from a Constitutional perspective, the power to decide immigration issues is generally unreviewable judicially when exercised by Congress, who wields it as an exercise of sovereign authority.

The President’s power in this area must generally be delegated by Congress.

[John_Mace]

@Bricker

So from a Constitutional perspective, the power to decide immigration issues is generally unreviewable judicially when exercised by Congress, who wields it as an exercise of sovereign authority.

So, Congress could, theoretically, disallow Muslims from immigrating to the US? Would such a law NOT be subject to The Lemon Test?

But keep in mind that the discussion is broader than immigration, and includes travel visas for folks just visiting with no intent to immigrate.

[Ramira]

I thought I have understood in reading that some part of the arguments by the Oregon state are basing themselves on the impact on the American entities, the companies and the individuals, is this correct and does this have the route to an argument that is going beyond the others?

[Nars_Glinley]

This feels very similar to executive privilege. It’s a non-constitutional power that will only exist in the minds of the Executive branch until the courts go along with it.

[John_Mace]

@Ramira

I thought I have understood in reading that some part of the arguments by the Oregon state are basing themselves on the impact on the American entities, the companies and the individuals, is this correct and does this have the route to an argument that is going beyond the others?

That is a consideration for folks who already have visas, and especially folks who were in transit at the time the order was issued. But a US company isn’t going to have standing by claiming there might be someone from country X that company might want to recruit some time in the future.

[Ramira]

@John_Mace

But a US company isn’t going to have standing by claiming there might be someone from country X that company might want to recruit some time in the future.

Is that opinion or is it the decided law?

And what about beyond the recruitement? The impact on the company freedom to contract with the entities not otherwise sanctioned?

[Richard_Parker]

Here’sa counter-argument to **Bricker’s **presentation above about the plenary power. Short version: relying on the Chinese Exclusion cases is like relying on Plessy v. Ferguson, and *Kerry v. Din *is no more on point than Boumediene v. Bush (allowing non-citizens outside the US to assert constitutional rights) when it comes to whether facially discriminatory measures are reviewable.

Additionally, the statutory provision he cites in the INA is contradicted by another provision of the INA forbidding some forms of discrimination on the basis of nationality. There’s a question of statutory interpretation about which provisions trumps the other, but the arguments are pretty good that the narrow exception overrides the broad grant of power.

[Bricker]

The Supreme Court has explicitly NOT applied the Lemon Test to review of consular decisions to issue visas. The requirements are only that the denial be grounded in statutory language and that there is no bad faith on the part of the consular officer.

In this thread, I asked a very similar question.

The answer (at least in the Second Circuit, courtesy of Eva Luna’s excellent cite of American Academy of Religion v. Napolitano, 573 F. 3d 115, 2nd Cir 2009) was that immigrants themselves have no constitutional right to a visa or standing to sue; they have no First Amendment rights that the visa denial can implicate under Lemon or any other test.

However, individuals within the United States have a First Amendment right to “hear, speak, and debate with” a visa applicant. This from the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753 (1972). This makes the visa applicant a “symbolic plaintiff.” Id at 762.

So courts have the power of judicial review when a visa is denied and someone inside the country asserts that this denial affected their First Amendment rights.

However, the scope of this review is not the Lemon Test. The First Amendment creates standing for judicial inquiry, but does not extend the “excessive entanglement,” Lemon Test to visa decisions. Instead, the rule is that if the exclusion is “on the basis of a facially legitimate and bona fide reason,” then the courts will not further examine the exercise of that discretion. Specifically, the courts may not “test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” See *Mandel[i/] at 770.

So, you may ask, what constitutes “facially legitimate?” What is a “bona fide” reason?

Answer: a reason is facially legitimate if it falls within a statutory category for exclusion. (Note: NOT a Presidential Executive Order). In Abourezk v. Reagan, 592 F.Supp. 880 (Dist DC 1984), the statute forbid entry to aliens that wish to “engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety or security of the United States,” and the aliens in question were members of groups that were hostile to the United States.

And a bona fide reason is an absence of any allegation that the consular officer acted in bad faith.

So: a consular officer’s assurance that he or she “knows or has reason to believe” that the visa applicant has done something that fits in a statutory exclusion is a facially legitimate reason.

[Bricker]

@Richard_Parker

Here’sa counter-argument to **Bricker’s **presentation above about the plenary power. Short version: relying on the Chinese Exclusion cases is like relying on Plessy v. Ferguson, and *Kerry v. Din *is no more on point than Boumediene v. Bush (allowing non-citizens outside the US to assert constitutional rights) when it comes to whether facially discriminatory measures are reviewable.

Additionally, the statutory provision he cites in the INA is contradicted by another provision of the INA forbidding some forms of discrimination on the basis of nationality. There’s a question of statutory interpretation about which provisions trumps the other, but the arguments are pretty good that the narrow exception overrides the broad grant of power.

The counter argument seems to be summarized as: we got no case law, but it just seems like the right thing to do.

I agree the INA business is not clear cut, and I don’t argue the President’s power to interpret the INA is unreviewable. But every single case I can find – even cases in the past dozen years – have stopped short of extending the First Amendment review past the Mandel line. (“We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”)

They cite no case to the contrary.

@Parker's cite

Will the Supreme Court sustain such a form of blatant discrimination in an immigration policy? The oral argument certainly provided hints that it will not—that even in the domain of immigration law, the Court will strike down government policies that it believes violate our Constitution’s core prohibitions on naked discrimination on the basis of sex or race or religion. If it does, then hopefully we can finally put to bed the misguided view about the immigration plenary power.

So it’s basically a hope that the Court will carve out a new exception in case law. It’s NOT a citation to current case law.

[GIGObuster]

The Justice Department has appealed a judge’s order blocking his [(President Trump’s)] travel ban at the 9th U.S. Circuit Court of Appeals in San Francisco, citing the “sovereign prerogative” of a president to admit or exclude aliens.

The appeal says it’s a basic principle, that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”

Well, the appeals “so-called” [sarcasm] judge begs to differ.

Appeals court knocks back attempt to swiftly reinstate Trump travel ban

Appeals Court Rejects Bid to Quickly Restore Trump Travel Ban

[Richard_Parker]

@Bricker

So it’s basically a hope that the Court will carve out a new exception in case law. It’s NOT a citation to current case law.

No President has ever attempted to limit immigration based on religion.

No President since Jim Crow has attempted to limit immigration on the basis of hostility toward certain countries or types of countries.

So while it’s true that there’s no modern legal precedent, that’s because there’s no practical precedent either.

There’s also no precedent that says the President cannot intern all Syrians inside the US pursuant to Korematsu. But I doubt you’d describe that as “basically a hope that the Court will carve out a new exception in case law.”

[UltraVires]

@Richard_Parker

No President has ever attempted to limit immigration based on religion.

No President since Jim Crow has attempted to limit immigration on the basis of hostility toward certain countries or types of countries.

So while it’s true that there’s no modern legal precedent, that’s because there’s no practical precedent either.

There’s also no precedent that says the President cannot intern all Syrians inside the US pursuant to Korematsu. But I doubt you’d describe that as “basically a hope that the Court will carve out a new exception in case law.”

I join Justice Bricker’s opinion in full and concur separately to respond to this. Although I agree with you that an extreme case of facial discrimination or imprisonment would likely get a carve out exception to the Chinese Exclusion Cases. However, for the judiciary to assume this power is unwise. Unlike in domestic policy where recent values have said that discrimination against resident citizens is “un-American” this simply does not apply to immigration policy. We may (and do in the case of Islamic terrorism) have unique national security interests which courts are not in a position to second guess.

A facial ban on Muslims entering the country, for example, does not forbid anyone at all from practicing their religion or enjoying liberty. All it means is that a particular foreign national may not travel to the United States: something that he had no cognizable claim to being allowed to do anyways.

The check on this action is in Congress and at the ballot box. Judges who have no national security clearance could (maybe not this time, but in the future if they go down this path) cause hostile belligerents to invade the country through legal channels.

To say that the Court would overrule Korematsu does not mean that it should act as an ex officio consular review board. I concur.

[Richard_Parker]

@UltraVires

Unlike in domestic policy where recent values have said that discrimination against resident citizens is “un-American” this simply does not apply to immigration policy. We may (and do in the case of Islamic terrorism) have unique national security interests which courts are not in a position to second guess.

No doubt, the conservatives on the court will say something similar, as they did in Boumediene. But Kennedy sided with the liberals to say that these vague claims of national security do not override basic constitutional principles. I think most of the force of your argument rests on vague fears rather than concrete and demonstrable facts. Waving the flag is gonna be tough on this one because the ban is so overbroad and underinclusive, and because the plaintiffs are going to be people like Iraqi translators who fought for our troops.

Note also the caveat I made in thisthread.

[John_Mace]

RP: When you say “not since Jim Crow”, you make it sound like ancient history. You’re still young, but for many of us, it wasn’t that long ago. The End of Jim Crow was something that happened in my teenage years. You are essentially saying “Not since Lyndon Johnson”, who I think comfortably fits in what we consider to be the modern era.

[Richard_Parker]

@John_Mace

RP: When you say “not since Jim Crow”, you make it sound like ancient history. You’re still young, but for many of us, it wasn’t that long ago. The End of Jim Crow was something that happened in my teenage years. You are essentially saying “Not since Lyndon Johnson”, who I think comfortably fits in what we consider to be the modern era.

The point isn’t how long ago that was, but that we had a sea change in the way our law treats discrimination.

[simster]

@UltraVires

The check on this action is in Congress and at the ballot box. Judges who have no national security clearance could (maybe not this time, but in the future if they go down this path) cause hostile belligerents to invade the country through legal channels.

Except that the travel ‘ban’ does not bring anything new to the table - where is the evidence that the ‘hostile belligerents’ have been invading our country to date?

What says that this ‘ban’ (of legal means to enter the country) would, in fact, prevent those ‘hostile belligerents’ from using ‘illegal means’?

So - exactly ‘what’ does this new ban bring to the table that wasn’t already in place and obviously effective - given that no one permitted in thru the process over the past 16 years has perpetrated any attack on US soil?

[John_Mace]

@simster

Except that the travel ‘ban’ does not bring anything new to the table - where is the evidence that the ‘hostile belligerents’ have been invading our country to date?

What says that this ‘ban’ (of legal means to enter the country) would, in fact, prevent those ‘hostile belligerents’ from using ‘illegal means’?

So - exactly ‘what’ does this new ban bring to the table that wasn’t already in place and obviously effective - given that no one permitted in thru the process over the past 16 years has perpetrated any attack on US soil?

Doesn’t matter for the purpose of this thread. That’s not an issue for the judiciary to decide.

[John_Mace]

@Richard_Parker

The point isn’t how long ago that was, but that we had a sea change in the way our law treats discrimination.

Would you expect that Immigration Law today would be subject to The Lemon Test?

[Iggy]

@John_Mace

Doesn’t matter for the purpose of this thread. That’s not an issue for the judiciary to decide.

Specifically the SCOTUS itself has ruled in prior immigration cases that it is NOT for the judiciary to decide such political questions. They have noted that policies may seem ill advised to the court but it is not their role to make that decision.