The legality of President Trump’s executive order on immigration depends in large measure on the interplay between two statutes: 8 U.S.C. s. 1182(f) and 8 U.S.C. s 1152(a)(1). In this post I will discuss whether the order is within the authority delegated by Congress. (I do not discuss the constitutional issues here).

8 U.S.C. § 1182(f)

The government’s statutory case hinges primarily on 8 U.S.C. § 1182(f), which 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.

Second, the provision delegates virtually unfettered discretion for the President to determine what is “detrimental to the interests of the United States.” As a constitutional matter, it isn’t even clear if such a delegation is necessary, as this authority (I would contend) is inherent in the President’s Article II powers. But here it is in the statute. In terms of Justice Jackson’s concurrence in Youngstown, we are squarely in the First Tier, where the Executive’s authority is at its apex.

Third, the provision gives the President wide, wide latitude. His proclamation can last “for such period as he shall deem necessary.” In other words, there is no temporal limitation. This power also includes the authority to “suspend” the “entry” (there’s that phrase entry again), or “impose” any “restrictions” the President deems appropriate. The statute expressly countenances a permanent moratorium on not just a single alien on a case-by-case basis, but for a “class of aliens” from entering the United States if the President deems their entry “detrimental to the interests of the United States.” This power is quite broad.

This understanding has long been embraced by the Executive. In an August 1982 OLC Opinion, Assistant Attorney General Theodore Olson advised the President that the Coast Guard could interdict Haitian Flag Vessels, and deny entry to Haitian nationals under 1182(f). (5 U.S. Op. Off. Legal Counsel 242):

Under § 1182(f), the President would make a finding that the entry of all Haitians without proper documentation is detrimental to the interests of the United States and issue a proclamation suspending their entry. It could be argued that the entry of illegal aliens, Haitians or otherwise, is already ‘suspended’ since it is already illegal for them to come, and that the section is directed against those who are otherwise eligible. The section, however, is not limited by its terms to documented aliens, and the legislative history is silent on this point. Since the section delegates to the President the authority to exclude entirely certain classes of aliens, we believe that a return of the Haitians can be based on the Coast Guard’s power to enforce federal laws. 14 U.S.C. § 89(a).

This issue was litigated, extensively, and the courts held that determinations under 1182(f) were not subject to judicial review:

8 U.S.C. § 1182(f) clearly grants the President broad discretionary authority to control the entry of aliens into the United States. Section 1182(f) grants the President the discretion to act to exclude aliens “as he deems necessary.” Pursuant to this power, President Reagan issued Executive Order 12324 authorizing the interdiction of illegal aliens at sea. HRC concedes that the President’s order is not reviewable under the APA. They argue that the President’s subordinates are not carrying out his directive and that their failure to do so is subject to judicial review. . . .

Congress has committed to the President broad authority to control the entry of aliens or of any class of aliens when he determines that it would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f). The President may suspend or restrict the entry of aliens for the period he deems necessary and impose the restrictions he deems appropriate. Id. Pursuant to this broad grant of authority, President Reagan issued Executive Order 12324.

Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507, 1510 (11th Cir. 1992)

In Sale v. Haitian Centers Council (1993), Justice Stevens found for 8 members (all save Justice Blackmun) that 1182(f) allows the President to deny Haitians entry, simply based on their nationality:

It is perfectly clear that 8 U.S.C. § 1182(f), see n. 27, supra, grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. Whether the President’s chosen method of preventing the “attempted mass migration” *188 of thousands of Haitians—to use the Dutch delegate’s phrase—poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits. As we have already noted, Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility. Cf. United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). We therefore find ourselves in agreement with the conclusion expressed in Judge Edwards’ concurring opinion in Gracey, 257 U.S.App.D.C., at 414, 809 F.2d, at 841:“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.”

Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187–88, 113 S. Ct. 2549, 2567, 125 L. Ed. 2d 128 (1993)

President Reagan relied on the same provision in 1986 to “suspend entry into the United States as immigrants by all Cuban nationals.”

By all accounts, 1182(f) provides all of the authority the President needs to exclude classes of migrants based on their nationality. Indeed, a 1984 dissent from the Eleventh Circuit acknowledged that this provision permits discrimination on the basis of national origin.

For example, in contrast to the parole statute, which contemplates individual consideration based on non-discriminatory factors, 8 U.S.C. § 1182(f) gives the Executive the power to bar entry of “any class of aliens” when “the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental….”3 Congress thus has shown that it knows how to grant the Executive the authority to discriminate based on national origin where it deems necessary, but no such grant can be found from the language of section 1182(d)(5).

Jean v. Nelson, 727 F.2d 957, 987 (11th Cir. 1984), aff’d, 472 U.S. 846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985) (Kravitch, C.J. dissenting from denial of rehearing).

What is the potential statutory argument to the contrary? 8 U.S.C. s 1152(a)(1).

8 U.S.C. § 1152(a)(1)

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

There are a few critical points to stress. First, as noted earlier, Section 1182(f) concerns the “entry of any aliens.” Section 1152(a)(1), in contrast, concerns only the issuance of “immigrant visas.” These are different concerns. Generally, a person who was issued a visa is not subject to any of the grounds of inadmissibility (See 8 U.S.C. s 1182). Thus, he will almost always be admitted into the United States (absent some emergency, like the communicable disease example I offered earlier). David Bier, for example, writes “Immigrants cannot legally be issued a visa if they are barred from entry.”

But this is not always the case. A person with an otherwise valid visa could still be denied entry based on changed circumstances. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001) is instructive.

Brumme, a German national had a valid non-immigrant “visitor visa.” After arriving from a flight from German at DFW airport, Brumme told an inspector that she intended to become an immigrant. That was the wrong answer.

Intending immigrants generally require an “immigrant” visa—authorizing permanent residence—as opposed to one of the various ‘nonimmigrant’ visas, such as Brumme’s “visitor” visa—authorizing a temporary stay for business or pleasure. The Inspector determined that Brumme did not possess a valid unexpired immigrant visa and informed her that her visitor visa did not permit her to remain indefinitely in the United States. According to the Inspector, the visitor visa required Brumme to make a significant departure by remaining outside the United States longer than she remained inside. Brumme acknowledged she understood that the visitor visa did not permit her to remain in the United States indefinitely; but she believed she could stay in the United States, leave for a short period, and return. Based on Brumme’s admission that she was an intended immigrant, and because she did not possess the requisite immigrant visa, the Inspector concluded that, pursuant to 8 U.S.C. § 1182(a)(7), Brumme was inadmissible to the United States. That section provides, in pertinent part: “[A]ny immigrant at the time of application for admission … who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document … is inadmissible”. 8 U.S.C. § 1182(a)(7).

Brumme was then ordered to be subject to the expedited removal process.

The changed circumstances here, however is not, something specific to an alien, but a departure from the executive’s policies. Trump’s executive order abandoned the old standards from the Obama administration, and established his own. As a result, decisions concerning admissibility, when granting old visas, are no longer consistent with current standards. And under (B), the Secretary can “determine the procedures” needed for the screening.

Contrary to Judge Robart’s questioning, there really is no inconsistency between 1182(f) and 1152(a). The latter controls the issuance of a visa. The former controls admission. The President’s executive order specifically concerned “entry” of such aliens:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order…

I flag one possible issue–the word “entry” and “admissible” may not be construed identically; I could not find a clear authority one way or the other on this. Entry seems to be a pre-1996 term, while admissibility is a presently used term. If anyone has a precedent on whether these terms are identical, or different, please share.

This 1980 decision from the 9th Circuit seems to use the phrase “entry” in the same sense as “admissible,” but I’m not certain:

As to the President’s authority under 8 U.S.C. s 1182(f), that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.

Mow Sun Wong v. Campbell, 626 F.2d 739, 744 (9th Cir. 1980)

Second, and relatedly, the non-discrimination provision is inapplicable to aliens who enter the United States with non-immigrant visas, or refugees who enter with no visa. With respect to these individuals, the government can discriminate on the basis of “race, sex, nationality, place of birth, or place of residence.” (I am tabling for a moment the constitutional issues). Further, notably absent from the list of prohibited grounds of discrimination is “religion.” Congress expressly left open the power of the government to grant visas on the basis of a person’s faith. (Again, this does not resolve the inquiry under the Free Exercise or Establishment Clause, but to the extent Congress had an intent here, they were not trouble by religious tests). Indeed, the Executive has often granted refugee status expressly because of an alien’s faith.

Third, subparagraph (B) specifically provides that notwithstanding the pervious paragraph, the Secretary can “determine the procedures for the processing of immigrant visa applications.” That includes the very sort of “extreme vetting” the President called for–even if it amounts to discrimination on the basis of nationality. Even if there is a conflict, the provision creates a special carveout for the admitting procedures.

I welcome any suggestions or corrections. If you’ve noticed, I haven’t come to a firm conclusion at this time.

I will also defer, for now at least, discussion of whether the order is constitutional. The Constitutional Law listserve has been ablaze over the past few days about whether the executive action violates the Due Process Clause, the Equal Protection Clause, the Free Exercise Clause, or the Establishment Clause. The answer is extremely complicated because the courts have never made clear how the Constitution applies to different classes of aliens, with different types of relations to the country, who are seeking admission to the United States.

In closing, I’ll reiterate that as a matter of policy, the order is absolutely awful, and the manner in which it was implemented was a debacle. But that does not resolve the question of whether it is legal.

Update: I wrote a second part, focusing on the distinction between entry and admission.

Update: I wrote a third part, focusing on the issuance of visas.

Update: Part of my series is here. I also wrote a two-part series on Lawfare concerning Washington v. Trump: Part I and Part II.