Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.” The rollout of the Executive Order has been confused, and its implementation uneven. Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries. Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.
The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries. Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country. For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.
Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)). This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries. Section 212(f) says:
“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.” (emphasis added)
By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens. However, the Trump Administration has gone further. The Trump Administration is turning aliens away from the border and returning them from whence they came.
In my prior blog post, I argued that the Executive Order conflicts with existing law in two ways. First, the Order is being used to deny persons at the border the right to request relief from removal under either Withholding of Removal or the Convention Against Torture (CAT). In general, aliens arriving at a U.S. port of entry who file an application seeking these forms of relief may be detained in a detention facility pending a review of their application, or they may be released subject to home monitoring or otherwise “paroled” into the community, but these aliens are not considered to have made an “entry” into the United States during the period that they are awaiting a decision on their application. No matter where they are physically located, legally they are treated as if they are still at the border. Section 212(f) and its focus on “entry” cannot be read to grant the President the power to override the right of an alien to file for relief under either the Withholding or CAT provisions.
Second, a successful application for relief under Withholding of Removal or the CAT does not necessarily mean that the alien will eventually be allowed to enter the United States. A successful application merely guarantees that the alien will not be returned to a nation where they face either persecution on the basis of specified grounds (Withholding of Removal) or the likelihood of torture (the CAT). This protection against forcible return is the bedrock requirement of the law. Even if Section 212(f) granted the broad power to President Trump to “suspend entry” that his defenders claim, it does not grant him the power to override the mandatory protection against return to a country where you are at risk. Aliens granted these forms of relief, but nonetheless denied entry to the United States, are entitled to receive transportation to a third country (government leaders in Canada and Scotland have at least informally offered to take refugees turned away from the United States under the Executive Order).
Suspending the “entry” of aliens is therefore completely separate from the right to file a request for relief from removal under the law, the benefits of which may not involve actual permission to enter the United States. By preventing arriving aliens from pursuing their rights under the law the Order goes beyond the actions permitted by the language of Section 212(f).
The Trump Administration seems to be implementing the Executive Order in a manner that cuts off legal avenues for refugees beyond the overseas refugee resettlement program. Approximately 46% of the refugees admitted to the United States in fiscal year 2016 were Muslim. Most of these refugees were admitted via the overseas refugee program, which involves a multi-year application and vetting process before a visa to immigrate to the U.S. is issued. However, an alternative legal path for refugees is to simply arrive at the border and request either Political Asylum, Withholding of Removal or relief under the Convention Against Torture. Reports in the media that Customs and Border Enforcement officers were refusing to let lawyers speak to detained aliens at airports suggest that the Trump Administration does not want arriving aliens to learn of their right to pursue this second avenue under federal law, which would prevent their immediate return to their home country.
[In 1996, Congress amended the Immigration and Nationality Act to replace the concept of “entry” into the United States with the concept of “admission.” Not all statutory provisions were changed, leading to persistent questions of statutory interpretation. Aliens at a port of entry, or even held in detention facilities for days and months subsequent to their arrival, are not considered to have “entered” the United States notwithstanding the fact that they are standing on U.S. soil].
Even if we were to read Section 212(f) more broadly than its words, and conclude that it expressly grants the President the power to override not just statutes relating to “entry” but also other legal provisions such as those governing Withholding from Removal and the CAT, the Executive Order would still be unlawful. This is because Congress, in a statute passed subsequent to Section 212(f), commanded that “no 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.” (8 U.S.C. section 1152(a)(1)(A)). By its language, this later statute permits of only narrow exceptions, and supersedes all prior statutes to the contrary. When two Acts of Congress are inconsistent, the Act which is later in time controls. Therefore, the anti-discrimination bar applies to limit the authority granted to the President under the earlier law.
Finally, the United States Constitution trumps everything (pun intended). Even if we turned ourselves into pretzels attempting to rationalize a reading of the relevant statutory language into congressional approval of the broad executive power invoked in President Trump’s Executive Order, the Congress cannot authorize the President to do what the U.S. Constitution prohibits. In this case, the Equal Protection Clause prohibits discrimination against certain categories of green card holders on the basis of their religion or nationality, when other green card holders are treated differently. As applied to permanent resident aliens, the Executive Order is unconstitutional whether or not any congressional statute purports to grant the president the authority to act. Perhaps this is why, less than 48 hours after issuing the Order, the Trump Administration has already abandoned the claim that the Order applies to green card holders.
News reports indicate that the Trump Administration drafted the language of the Executive Order on the fly, without pre-clearance from the White House Office of Legal Counsel which would have assessed the legality of the Order. This presents a cavalier attitude towards the Rule of Law that is troubling. More importantly, this entire debacle also represents a cavalier attitude towards the lives of the human beings impacted by the Executive Order. For many readers of this blog, the use of government power without regard for the consequences on people’s lives raises moral issues that far exceed the legal questions addressed above.