The President’s power to keep aliens out 4

Further to yesterday’s post, The Left’s abuse of children, and our argument that the best way to deal with the flood of illegal aliens crossing into the US over the southern border is to send them straight back to where they came from, here’s an authoritative opinion that the President has the power to do this.

Daniel Horowitz* examined Article II of the Constitution which gives the President control foreign affairs – reiterated as delegated congressional authority under 8 U.S.C. §1182(f) (Sec. 212(f) of the INA) – and writes at Conservative Review:

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.

There are three important observations to be made here:

  1. The criteria for exclusion is not based on “national security concerns” or “terrorism.” It’s anything that, in the determination of the president, would be “detrimental to the interests of the United States.” That includes public welfare, health concerns, values, attitudes, etc. Thus, in this case, where the surge has already created the worst drug and gang crisis in the history of the country, the president would be justified in invoking this power.
  2. Just like the president has the authority to completely shut off immigration, he may impose any restrictions on entry even if he chooses to continue various forms of immigration. Thus, in order to abide by the Geneva Conventions on asylum, the president can condition any asylum claims on applying at a U.S. consulate in Mexico, not at the border – or turn them back immediately.
  3. This is not the type of provision in which a court can demand evidence that the condition of “detrimental to the interests of the United States” was met. The delegation of authority was designed as plenary power. The courts have absolutely no authority to second-guess the president’s determination. That is up to Congress and the electorate. As a recent Congressional Research Service report observes, from the House report on the 1952 immigration bill that granted this authority: “The bill vests in the President the authority to suspend the entry of all aliens if he finds that their entry would be detrimental to the interests of the United States, for such period as he shall deem necessary” (H.R.RPT.1365, 82d Cong.,2d Sess., at 53 (Feb. 14, 1952)).

Section 212(f) has been invoked 43 times since 1981, 19 of which were by President Obama. The one major Supreme Court case covering 212(f) was Sale v. Haitian Centers Council, Inc. (1993), which dealt with a policy established by Bush 41 and Clinton to apprehend Haitians traveling by sea to our shores. The policy was designed to return these Haitians to their home country before they could land in the United States and apply for asylum. In a clear 8-1 decision authored by Justice John Paul Stevens, the court fully upheld the act and made it clear that there are no limitations on 212(f) authority.

Similarly, the few lower court decisions on this matter clearly affirmed long-standing settled law. Any alien who enters the country without lawful status or against the president’s 212(f) proclamation is considered to be outside our borders and has no right to apply the due process of deportation procedures to his predicament.

In one of the few cases on 212(f) (Encuentro del Canto Popular v. Christopher, 1996), a district judge in California made it clear that not only does the president have the delegated authority from the legislature to cut off visas, but he also has his own powers to conduct foreign affairs:

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. 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” [930 F. Supp. 1360, 1365 (N.D. Cal. 1996)]. …

In addition to INA 212(f), there is another section — INA 215(a)(1) — that grants the president an almost equal level of authority to regulate entry of all aliens, which includes both immigrant and non-immigrant visas:

Unless otherwise ordered by the President, it shall be unlawful–

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;

If demanding that all immigrants enter legally or apply for asylum in a safe and controlled environment at a consulate rather than at a border controlled by some of the most dangerous people in the world is not a “reasonable rule”, I’m not sure what is. According to the Congressional Research Service, President Carter used 215(a)(1) authority to suspend immigrant and non-immigrant visas from Iran following the Iran hostage crisis. Bill Clinton also used it to prevent Haitians from landing on our shores. These regulations clearly cover even legal permanent residents; they therefore certainly cover people who have no ties to our country and are seeking entry at our border for the first time.

The point is that nobody ever has a claim to land on our shores without the consent of the president, and the president can block such entry using both his inherent Article II powers and these two sections of the INA. As the Supreme Court said in Youngstown Sheet & Tube Company v. Sawyer, “When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Also, let us not forget that even if individuals find a way onto our soil, that does not give them any affirmative rights. Constitutional rights on our soil only apply to a person who comes here with consent. That is deeply rooted in social compact theory and settled law. As the court said long ago in United States v. Ju Toy, a person who comes to the country illegally is “to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries”. 

Trump is reportedly looking for a way to go big on immigration using executive authority. He already has the ultimate authority to shut off the migration completely. And that is all the leverage he needs over Congress.

 

*Find Daniel Horowitz’s book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America here.