Article by: Federalist Gwen
The Executive Order (EO) issued by President Trump on January 27th which banned travel and immigration from seven majority Muslim nations as well as halting refugee immigration has been highly controversial. On February 3, United States district judge James Robart issued a temporary restraining order (TRO) halting the ban at the request of the states of Washington and Minnesota1. The TRO and now subsequent suit by the states was heard by the 9th Circuit Court who upheld the lower court ruling. These events bring into question the role of Executive Orders, the authority of the President, Congress and the States in immigration and foreign policy, and the appropriateness of judicial review or oversight. The author will focus on this one EO, but some generalizations to other orders, could be inferred.
Are all Executive Orders all Bad?
Not at all. The President, as the Executive, is empowered to implement legislation and exercise his/her Constitutional duties via any lawful manner. This is frequently done by means of Executive Orders. At a very high level, as long as these are within the bounds of legislation and/or the Constitution, these are effective means of being what Alexander Hamilton called “an energetic executive” 2 Executive Orders that reach beyond the President’s Constitutional or legislatively derived authority are not appropriate or lawful and should be subject to oversight by Congress or the judicial branch. One example of such an EO could be President Obama’s EO granting amnesty to illegal aliens without legislative authority. This EO required, in the Federalists’ opinion, judicial oversight and indeed it received that oversight. The lower courts ruled that the President had indeed overstepped his Constitutional boundaries and this ruling was upheld by a 4-4 Supreme Court decision. 3
The key principle, from a Federalist perspective, is not the actual policy, but whether or not the President is exercising his/her executive authority within Constitutional bounds.
What about the Immigration/Travel Ban Executive Order?
Article II, Sections 2 and 3. of the Constitution vests in the Executive, the primary authority over foreign policy. This authority was a source of argument between the founders but eventually the view expressed by John Jay in Federalist Paper #64 prevailed. His view was the executive branch should handle foreign policy given the advantage of being able to move quickly and efficiently4.
Multiple years of case law have upheld this plenary power of the President over foreign affairs. Supreme Court Justice John Marshall was quoted when he was a member of the House of Representatives as stating:
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him5.
Although not directly tied to foreign policy, Marbury v Madison6 and Little v Barreme7, both maintained that Congress retains authority to create laws which then the President must follow and established the concept of judicial review, in that neither the President nor Congress are immune from the Constitution or law8. The most commonly cited case in modern history regarding presidential versus congressional powers over foreign affairs is Curtiss Wright v the United States (1936) in which the Court found that the President had broad authority over foreign affairs9.
Specifically regarding immigration authority, the seminal case establishing Congress’ right to exclude persons from entry, even if it is in opposition to a treaty, is Chae Chan Ping v. United States10. Another important case is Harisiades v. Shaughnessy (1952)11 in which multiple precedents were set such as deportation was not a punishment, but a sovereign right of a nation, and therefore not subject to Constitutional due process protections. Furthermore, the court found:
The policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference, and it cannot be said that the power has been so unreasonably or harshly exercised by Congress in this Act as to warrant judicial interference. Pp. 342 U. S. 588-59011.
These same concepts were upheld in Knauff v Shaugnessy (1950)12 and Kleindienst v Mandel (1972)13. It is interesting to note that Mandel was specifically regarding the Attorney General’s right to bar an academic’s entrance to the United States under the Immigration and Naturalization Act despite Stanford University wishes otherwise. This ruling would seem to have direct application to the academic interests cited by the states of Washington and Minnesota in their law suit.
The 9th Circuit, although declined to actually rule on the lawfulness of the TRO or the EO, their comments regarding possible breeches of due process are not applicable. The cases that were cited such as US v Raya Vaca (2014)14 were about criminal cases, not deportation.
In the Immigration and Naturalization Act Congress clearly gives the President authority to exclude individuals who, in his or her opinion, pose a threat to the American people:
Title 8 U.S.C. § 1182(f) provides:
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.14
The 9th Circuit court also implied that the President was required to provide proof of the inherent dangers of immigrants from the “countries of concern.” To the Federalist, the President is under no obligation to provide such proof. The 9th Circuit also failed to even note the statute in its ruling. This may well be that the statute essentially precludes judicial review under the longstanding Justice Jackson’s Youngstown Taxonomy of Judicial Review.15 The justice’s opinion in this 1952 case laid out the framework for courts to assess the use of executive power. In this framework, the President has the most authority when he or she is exercising authority explicitly given him or her by Congress. This is clearly the case in this EO and the 9th has chosen to ignore it.
Finally, it is interesting to note that the 9th Circuit actually stated that the initial TRO was overboard, but refused to properly remedy this overreach by limiting the TRO.
It is this author’s opinion that the both the initial TRO and the 9th Circuit Court sustaining of the TRO are examples of judicial activism. The three judges exercised their will as opposed to judging by the law. President Trump clearly has the authority to limit the entrance of aliens into this country as her sees fit.
The President has indicated that he will issue another EO that will appease the 9th Circuit. This is likely a wise political move and perhaps that most expeditious one but a little bit of the wall of separation of powers has been chipped away.
- Federalist Paper #70
- Federalist Paper #64