This morning, my worlds collided as Donald Trump tweeted (without any context) a sentence from Ben Wittes’s post on Washington v. Trump.
LAWFARE: “Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.” A disgraceful decision!
— Donald J. Trump (@realDonaldTrump) February 10, 2017
Once again, Trump has stumbled into an important jurisprudential point. The fact that the President is exercising powers given to him from Congress, augmented by his own inherent authorities, indicates we are in Justice Jackson’s first tier from Youngstown, where judicial scrutiny is at its minimum.
8 U.S.C. § 1182(f) allows the President to deny “entry” to “classes of aliens” he deems “detrimental to the interests of the United States.” (For a discussion of this provision, see Part II of my series).
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.
During his remarks on Wednesday, President Trump–in his own crude fashion–engaged in statutory interpretation and offered an articulation of Justice Jackson’s framework (with a fascinating detour on gender pronouns in statutes):
But I’m going to read what’s in dispute, what’s in question. And you will see this — it’s INA 212(f) 8 U.S.C. 1182(f): “Suspension of entry or imposition of restrictions by the President” — okay, now, this isn’t just me, this is for Obama, for Ronald Reagan, for the President. And this was done, very importantly, for security — something you people know more about than all of us. It was done for the security of our nation, the security of our citizens, so that people come in who aren’t going to do us harm.
And that’s why it was done. And it couldn’t have been written any more precisely. It’s not like, oh, gee, we wish it were written better. It was written beautifully. So just listen, here’s what it says. This is what they’re arguing:
“Whenever the President finds that the entry of any aliens” — okay, the entry, the entry of any aliens — “or of any class of aliens” — so any aliens, any class of aliens — “into the United States” — so the entry of people into the United States. Let’s say, just to be precise, of aliens into the United States.
So any time — “whenever the President finds that the entry of any alien or any class of aliens into the United States would be detrimental to the interests of the United States” — right? So if I find, as President, that a person or group of people will be detrimental to the interests of the United States — and certainly there’s lots of examples that we have, but you shouldn’t even have them, necessarily — he may be — and “he may by proclamation, and for such period as he shall deem necessary…” Now, the only mistake is they should have said “he or she.” But hopefully, it won’t be a she for at least another seven years. After that, I’m all — (laughter and applause.) See? I just noticed that, actually. I just noticed it. I’m saying, whoa, this is not politically correct. It’s correct, but it’s not politically correct, you know, this is the old days.
He may by proclamation and for such period as he shall deem necessary — so here it is, people coming in — suspend the entry of all aliens. Right? That’s what it says. It’s not like — again, a bad high school student would understand this. Anybody would understand this. Suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens. Okay, so you can suspend the aliens, right? You can suspend the aliens from coming in — very strong — or impose on the entry of aliens any restrictions he may deem to be appropriate.
Okay. So you can suspend, you can put restrictions, you can do whatever you want. And this is for the security of the country — which, again, you’re the chiefs, you’re the sheriffs. You understand this.
We are not in a Zone of Twilight here. Not even close. As a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. But that is not the entire calculus. Here Congress has, with unequivocal language, delegated its Article I powers over immigration to the President. In Justice Jackson’s words:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
The 9th Circuit did not apply a presumption of constitutionality. Nor did it impose a wide latitude of interpretation. Rather, without any precedent, it imposed an insurmountable burden on the government. Had the panel even bothered to engage with the statute, it would have realized we are in Jackson’s first zone, and that judicial scrutiny must be at an absolutely minimum. The court should have presumed that when Congress afforded the President this power, it did not think Due Process controlled, for it failed to put in any review mechanisms (in contrast to countless other provisions of the immigration laws). There is every indication that, at least with respect to denial of entry, Congress agreed the President had plenary power.
Instead, the court applied something approaching strict scrutiny to the denial of entry for certain aliens who have zero connection to the United States. Really, it applied the sort of scrutiny Justice Jackson wrote about in the third tier:
Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
There are so many grounds to criticize the panel’s decision, but the failure to even discuss the statutory framework is inexcusable because it allowed the judges to look away from Justice Jackson.