President Trump is acting pursuant to a federal statute allowing him to "suspend the entry of all aliens or class of aliens" if he determines and/or believes their entry "would be detrimental to the interests of the United States."
Many Presidents have invoked this statutory power, including former President Obama, but none of them exercised the power as broadly as Trump did in his EO.
This post shouldn't be construed as an endorsement of the EO. I'm just illuminating the fact Trump has invoked statutory authority for his EO.
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But he has offered no argument to show how he *determined* their entry would be detrimental. Everything put forward so far has been erroneous. Simply saying they are from an arab country is not enough. If he were to highlight specific people that'd be one thing. But should a country of origin be considered a "class"?
Consider the case of
Shaughnessy v. Mezei, 345 U.S. 206 (1953).
born in Gibraltar of Hungarian or Rumanian parents and lived in the United States from 1923 to 1948. In May of that year, he sailed for Europe, apparently to visit his dying mother in Rumania. Denied entry there, he remained in Hungary for some 19 months, due to "difficulty in securing an exit permit." Finally, armed with a quota immigration visa issued by the American Consul in Budapest, he proceeded to France and boarded the Ile de France in Le Havre bound for New York. Upon arrival on February 9, 1950, he was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act as amended and regulations thereunder. Pending disposition of his case, he was received at Ellis Island. After reviewing the evidence, the Attorney General, on May 10, 1950, ordered the temporary exclusion to be made permanent without a hearing before a board of special inquiry, on the "basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." That determination rested on a finding that respondent's entry would be prejudicial to the public interest for security reasons.
The Court determined the Attorney General's conduct was permissible and lawful and said:
Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. The Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U. S. 698 (1893); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife. That authorization, originally enacted in the Passport Act of 1918, continues in effect during the present emergency. Under it, the Attorney General, acting for the President, may shut out aliens whose "entry would be prejudicial to the interest of the United States." And he may exclude without a hearing when the exclusion is based on confidential information the disclosure of which may be prejudicial to the public interest. The Attorney General, in this case, proceeded in accord with these provisions; he made the necessary determinations and barred the alien from entering the United States.
The Court went on to say:
But an alien on the threshold of initial entry stands on a different footing: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Knauff v. Shaughnessy, supra, at 338 U. S. 544; Nishimura Ekiu v. United States, 142 U. S. 651, 142 U. S. 660 (1892). And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case;
In such circumstances, we have no difficulty in holding respondent an entrant alien or "assimilated to [that] status" for constitutional purposes. Id. at 344 U. S. 599. That being so, the Attorney General may lawfully exclude respondent without a hearing, as authorized by the emergency regulations promulgated pursuant to the Passport Act. Nor need he disclose the evidence upon which that determination rests. Knauff v. Shaughnessy, 338 U. S. 537.
I am not citing the case for the purpose of expressing my approval of the Court's reasoning/holding or my agreement with the outcome. I am citing the decision because the U.S. Supreme Court case has not been overturned and is relevant in properly assessing the lawfulness of the EO. There are several issues, of course, in applying this decision to the facts of Trump's EO.
1. Does the Immigration and Naturalization Act provide language authorizing the Executive Branch to exclude an "entrant alien" or "assimilated to that status" as the law did in the case of Shaughnessy v. Mezei?
2. Does the Immigration and Naturalization Act have language authorizing the Executive Branch to exclude "alien entrants" on a group basis, such as all people from a nation and/or nations?
3. Does the Immigration and Naturalization Act have language authorizing the Executive Branch to exclude "alien entrants" or " "assimilated to that status" on the basis of nationality and/or be located in a nation?
4. Does the INA require any particular process before exclusion of "alien entrants" or " "assimilated to that status"?
It has been awhile since I read the Immigration and Naturalization Act, so I do not immediately have the answers to these queries.
Of important note, however, and I would be remiss if I did not also mention the following important language from the decision.
"To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process. Kwong Hai Chew v. Colding, 344 U. S. 590, 344 U. S. 601 (1953); cf. Delgadillo v. Carmichael, 332 U. S. 388 (1947). Only the other day, we held that, under some circumstances, temporary absence from our shores cannot constitutionally deprive a returning lawfully resident alien of his right to be heard. Kwong Hai Chew v. Colding, supra. Chew, an alien seaman admitted by an Act of Congress to permanent residence in the United States, signed articles of maritime employment as chief steward on a vessel of American registry with home port in New York City. Though cleared by the Coast Guard for his voyage, on his return from four months at sea, he was "excluded" without a hearing on security grounds. On the facts of that case, including reference to § 307(d)(2) of the Nationality Act of 1940, we felt justified in "assimilating" his status for constitutional purposes to that of continuously present alien residents entitled to hearings at least before an executive or administrative tribunal.
