January 31, 2017 (Fault Lines) — When I wrote in November that the president likely had the constitutional power to exclude Muslims from coming to the U.S., I included a number of caveats, describing circumstances where he would not have such authority. Since that time, President Trump has signed an executive order denying entry to any non-citizen from certain Muslim-majority countries and all refugees.
As seems typical of the president though, this order seems to run with the headline that the Executive could permissibly decline to issue visas for Muslims while ignoring the details about the limits of that power. The order actually issued is quite unlawful for a number of reasons.
As of January 27, 2017, the order “hereby suspend[s] entry into the United States, as immigrants and nonimmigrants” aliens from Libya, Iran, Iraq, Somalia, Sudan, Syria and Yemen for 90 days, those from Syria indefinitely, and “suspend[s] any … entry” of additional refugees from any nation for 120 days. The president invoked authority under 8 U.S.C. § 1182(f), which provides that a president may:
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 . . . [w]henever 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.
On its face, part of the order seems permissible. Section 1182(f) gives the president the power to deny admission to anyone he finds “detrimental.” And, as I explained before, the Court in Kleindienst v. Mandel held:
[T]he power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.
This means, most likely, that the Executive has the power to decline to issue visas to pretty much anyone it wants to, even for patently unconstitutional reasons, such as religious preference.
What Trump did, however, in a spectacularly dumb and uniquely cruel move, was to say that his administration would not recognize visas, or permanent residencies that were already issued to people from the blacklisted countries. He decided they simply wouldn’t be allowed in. He also decided it was effective immediately, even for people in midair who had boarded planes with valid visas.
The way the order is written, it applies to the “entry” of “any aliens” in the relevant categories. “Alien” is a term of art in immigration law, and “means any person not a citizen or national of the United States.” “Entry” isn’t a term that is used in immigration law any more, but it used to be one. Before the term was removed from the immigration code, it meant “any coming of an alien into the U.S. from a foreign port or place,” and, more particularly, physically entering the U.S. and being admitted to the country by an immigration officer (or evading one). Thus, by its terms the order applies to anyone who is from the relevant countries or is a refugee from any country who isn’t a citizen of the United States. Those people won’t be allowed to pass through immigration once they arrive, no matter what.
As we saw, this means than people with permanent residency or other immigration benefits, even when those benefits had been in effect for years, were immediately denied admission at arrival.
This kind of breadth far exceeds the power given by Section 1182(f) and the deference explained in Kleindienst.
As the D.C. Circuit explained a long time ago, when it comes to administrative orders excluding aliens:
The Executive has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations.
The difference between the Kleindienst power to simply deny prospective benefits to a group of aliens based on impermissible reasons and the power under Section 1182(f) to suspend benefits is pretty large. Once benefits have actually been conferred, Kleindienst doesn’t apply at all.
The whole point of that decision, and its doctrine, is that the Executive gets to decide how to exercise his discretion to grant temporary admission. The president doesn’t owe anyone a visa. This is what the Department of Homeland Security was probably thinking about when it declared over the weekend that the order was lawful and said:
No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States.
But note DHS’ numerous caveats — a “foreign national in a foreign land” who is “without ties to the United States” lacks an “unfettered right to demand entry.” As DHS apparently understands, someone who has already been given immigration benefits, who has ties to the U.S. granted by law, can’t be arbitrarily turned away in violation of the laws granting them benefits. If permission to enter has already been issued on a lawful basis, the executive can’t invalidate it for no reason at all.
Once the benefits have been conferred, the Executive’s power under Section 1182(f) is limited by statutory and constitutional principles. This means, first, that the Executive still has to follow the Immigration and Nationality Act, as written by Congress. And several parts of the INA conflict with the order as it relates to any alien who has already been given an immigration benefit. First we have 8 U.S.C. § 1152(a), which says:
[N[o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
While Section 1152(a)’s vitality is subject to debate, there is, at least, a strong facial conflict between it and the order in question.
More substantially, with respect to permanent residents only, the Supreme Court long ago concluded that the statutory structure in play prevents the Executive from preventing someone from re-entering the U.S. from trips abroad that do not intentionally and meaningfully interrupt their permanent residency, unless the person was subject to being deported under the INA. That remains the law today, even under revised immigration statutes.
What that means is that an LPR from Syria can’t be turned away at the border after a non-permanent trip abroad unless that person could also be removed from the country for some valid reason that pre-existed the executive order. To the extent the current executive order says otherwise, the INA wins and the person must be admitted.
Finally, the Constitution applies here as well, at least in a limited way, and should spell trouble for the order as it applies to any alien who already has an immigration benefit. Initially there is a procedural due process problem. Once immigration benefits of any type are conferred, the executive can’t just withdraw them without following specific rules. After all, due process is, at its heart, a principle that the government has to follow its own rules for doing things. The executive order violates things like the Administrative Procedures Act, as well as the statutes governing asylum and related applications for relief, because it directs DHS to deny admission to certain people, despite what the INA says about what they are supposed to do. This procedural due process problem is why the order was stayed by several federal judges.
And, if all that weren’t enough, the order very likely violates the equal protection clause and/or the First Amendment. This is more of a stretch, because unlike all the rhetoric thrown around on the campaign trail, the order isn’t explicitly a “Muslim ban.” It doesn’t even apply to all majority Muslim countries. However, given the administration’s comments, including Rudy Giuliani’s description of the order as explicitly crafted at the president’s behest as means to do a Muslim ban “legally,” there is a legitimate chance that a court might strike it down as purposeful discrimination on account of religion, or an illegal action that burdens free exercise of religion.
All of this is simply an illustration as to why executive orders are usually vetted by lawyers and not Pepe the Frog’s best friend before the President of the United States signs them. Mercifully, as illustrated by several federal judges who have blocked some or all of the order, we are still, at present, a nation of laws.
 Note that it isn’t a good idea to refuse to give Muslims visas. It’s not. It’s a terrible idea. But it is probably legal.
 There seems to be confusion within the administration about whether the order applies to Lawful Permanent Residents. At the time of this writing, Homeland Security Secretary John Kelly has declared that, while technically banned by the order, he is using his authority under the order to allow LPRs to enter the country. Nevertheless, the order still technically applies to LPRs and Secretary Kelly retains the discretion to deny LPRs admission pursuant to that order. It remains to be seen whether LPRs will be excluded or not, so, for completeness, it is assumed some will be.