Bishop: The Travel Ban Ruling - Consistent with Precedent, The Ball is in Congress’ Court
Thursday, July 19, 2018
The Supreme Court recognized that abolishing borders is essentially abolishing the country
As the Supreme Court observed in Fong Yue Ting, an 1892 case in which several Chinese nationals challenged an 1888 congressional prohibition on the reentry into the US of Chinese laborers who had left the country: “It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” (citing the prevalent codifiers of international law of the time Vattel and Phillimore)
One hardly has to go back to Chinese labor cases from the 19th century to find the court recognizing the essential nature of borders as an incident of national sovereignty consigned to the political branches. Following a coup in Haiti in 1991, HW Bush and Clinton both ordered interdiction of Haitian refugees on the high seas and their repatriation without consideration of claims for refugee status. These interdictions actually began during the Reagan administration. At first, refugee claims were adjudicated at sea and then at Guantanamo Bay. But the swelling number of Haitians fleeing the country swamped these facilities leading subsequent administrations to dispense with refugee status hearings altogether.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTLiberal Justice John Paul Stevens authored an 8-1 opinion in Sale v Haitian Centers Council upholding the practice of returning intercepted Haitians without process, recognizing both the President’s power under 8 USC 1182(f) (the same provision the Trump administration relied on in crafting its travel ban) and the humanitarian dilemma but demurring that the law did not always have an answer: “This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy.”
This is not judicial abdication but a reiteration of the longstanding judicial rule articulated in 1895 in the case of Lem Moon Sing: “The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.”
The Court recognized that to abolish the function of immigration enforcement is essential to abolish the country holding in The Chinese Exclusion Case: “If [the government of the United States] could not exclude aliens it would be to that extent subject to the control of another power.” While one can imagine both liberal and restrained policy regarding immigration that could yaw from a pretty pourous perimeter to virtual isolation, open borders are simply incompatible with the notion of a nation to begin with.
The question was never whether this was a Muslim ban in disguise, it didn’t matter
Trump’s critics suggested his motive was animus toward a particular religion, thus violating the establishment clause of the 1st amendment. An immigrant himself, and one of the country’s leading scholars of 1st and 2ndamendment jurisprudence, Eugene Volokh had explained to the contrary during the election that the plenary power of the political branches over immigration meant: Banning Muslims from entering the U.S. is a very bad idea – but it may be constitutionally permissible.
Now that the Court has decided Trump v. Hawaii along the lines Volokh saw in the tea leaves of virtually all its earlier rulings on immigration, the wailing and gnashing of teeth has begun in earnest by those who failed to see that “insanity is doing the same thing over and over again and expecting a different result”. One cannot ignore that the court can have an arc of consideration that begs to raise the same issue again. For instance, Brown v Board of Education overruled Plessy v Ferguson on the so-called “separate but equal” doctrine. But here it wasn’t a question of overruling a single decision, but virtually the entire body of the high court’s immigration precedent. Tim Sandefur, the VP for litigation of the libertarian Goldwater Institute conceded: I hate the Travel Ban Decision – but its right. But if the courts have consigned the substance of immigration policy to the political branches are all judicial appeals fruitless in this arena?
Can we square the delegation in this case?
It was largely ignored by those challenging the travel ban that the courts can police not only the substance of political enactments but the process by which they are adopted. In particular, where Congress has delegated power to the executive, the court can be asked to decide if the delegation is sufficiently concise that its enforcement represents administration and not administrative lawmaking – which would violate the separation of powers where Congress is to make the laws. John Yoo, writing with Robert Delahunty, hints at how travel ban opponents missed this issue, perhaps due to their affection for broad executive power in the realm of domestic administration: “Liberals have usually applauded such broad transfers of congressional power to the administrative state when the subject is environmental protection or market regulation.”
Ironically, Yoo actually concedes too much. In the case of foreign policy and national security, the courts have actually approved far more flexibility in the delegation to the President. Justice Sutherland writing in the case Yoo cites, Curtiss Wright Export Corp, that examined FDR’s prohibition on arms sales to Bolivia and Paraguay during the Chaco War of the 1930s, did not see a parity of delegation in domestic and international aims. He all but ruled that the delegation at issue might indeed be unconstitutional were its ambit internal affairs: “congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”
But this does not make excessive delegation a false flag in Trump v Hawaii simply because it involves foreign affairs and national security. The delegation in Curtis Wright was relatively specific: “if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries . . . it shall be unlawful to sell . . . any arms or munitions of war . . . to the countries now engaged in that armed conflict”. And yet the court still implied it was a close call if similar language were applied to domestic administration – in other words Congress itself would have to make the finding!
Compare this to the delegation of 8 USC 1182(f) relied on by the President in Trump v Hawaii: “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.”
Congress’ power to give away? But no brief raised this issue!
This is glaringly uncabined delegation. It is not restricted to issues of security or foreign policy. It knows no principle other than the President’s instinct. While issues of security and foreign policy are surely interwoven, the policy over immigration itself has been recognized by the Court as flowing to Congress with this clear statement in a notable case urging the 1st Amendment as trump (sorry) to legislative immigration policy, Kleindeinst v Mandel : “The Court without exception has sustained Congress' plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. [O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens”
Just because Congress has the power though, does not mean that power can be delegated in virtually unlimited fashion to the President. Even if there are national security concerns or foreign policy ramifications that could justify looser delegation, can Congress delegate the power to the President to do virtually anything by way of lawmaking across the field of immigration and imagine that the Court can later apply some limitation as to foreign policy or national?
Of course, it is possible to read the Court’s ruling in Trump v Hawaii as an implicit denial of the relevance of that question because it finds the President’s action “squarely within” the delegation and raises no question about the proper extent of that delegation. But the gaping intellectual hole, in this case, is that no brief opposing the President’s order actually argued that the delegation was excessive.
A local angle on national question, text vs. context
In fact, the “Scholars of Immigration Law” Brief filed in part on behalf Roger Williams Law Professor Peter Margulies, actually argued just the opposite: “When Congress enacted 8 U.S.C. § 1182(f) in 1952, it delegated to the President a cabined authority to enact restrictions on immigration in response to exigent geopolitical circumstances.” It appears that Roger Williams Law School may have missed the recent generation in which the law has returned to textualism as its font. While associated with the approach advocated by Justice Antonin Scalia, this is not thought of as a right turn for the court so much as an interpretive change that does not itself have partisan content. So the notion that Margulies could somehow read the words “exigent geopolitical circumstances” into a statute where they do not exist is remarkable.
The immigration law scholars rely not on text, but context. They look to what Congress’ concerns might have been when the statute and predecessors were passed; they look to the style of use made of the provision by previous presidents. But apparently, they missed the memo that the Court is not in the fashion of applying even a modestly informed crystal ball to divine congressional intent, but looks to the commonly understood meaning of the words that Congress wrote.
But this point poses an equal problem for supporters as for opponents of the travel ban. If one cannot infer that the delegation was limited to a narrow set of “exigent political circumstances” which the immigration scholars argue were not sufficiently established to support the ban, one can neither infer that this untethered power of of the President to do as he would with immigration was saved by an imaginary limitation to specific circumstances where the Court would afford ‘flexibility’.
So, it is quite possible that Congress could write a law the would provide the President the power to ban travel from countries he deemed a threat in some way, regardless of whether the list was exclusively Muslim majority countries. It is simply not clear to me that Congress wrote such a statute. But no one opposing the ban had the gumption to ask that question.
The Trump presidency is an invitation to Congress to fulfill its role
Of course in the steal mill seizure case, Youngstown Sheet & Tube Co., Justice Jackson’s famous concurrence stated a truism regarding confluence of legislative and presidential authority: “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”.
This is the ironic promise of the Trump presidency. While Trump has commanded the support of many on occasion, his seldom uncontroversial exercise of the office has also sometimes placed him at odds with a Congress lead by his own party. The separation of powers requires that Congress act to check the President. But last month, Congress could not even overcome its differences to act on family separation so the hope for Congress to assert itself is fading.
Clearly, partisanship was alive and well under Obama’s presidency and Republican intransigence frustrated possible congressional action on issues raised by Obama’s executive actions. But we are told that Trump’s undertakings are different in kind, that they transgress not simply principles of his partisan opponents but basic decency and governmental habit desired by both parties. I do not broadly subscribe to that theory, but if it were actually true, Trump’s partisan opponents would be looking for compromise and give ground in order to create a congressional supermajority to trim what they view as his unique excesses. Their lack of willingness to do so suggests to me that my intuitions are correct: that Trump is no worse or better than other Presidents and the shoe is simply on the other foot at the moment.
Brian Bishop is on the board of OSTPA and has spent 20 years of activism protecting property rights, over-regulation and perverse incentives in tax policy.
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