At the new Take Care Blog, Leah Litman and Ian Samuel fault me for excluding citations for the proposition that the President has inherent power to deny aliens entry to the United States.
One gets the sense from Blackman that he believes the President might win even then: He says, without elaboration, that the President’s “inherent Article II authority” permits him to deny entry to the United States to anyone he wishes, even “in the absence of any statute.” (This surprising assertion is bereft, as such brassy claims of presidential power usually are, of citation to the text of Article II; Blackman certainly does not clutter the essay with any reminder that it is Congress that enjoys the power to regulate “commerce with foreign nations,” establish a “uniform rule of naturalization,” and make such further laws as are “necessary and proper for carrying into execution” those powers.)
I sincerely apologize to the authors for omitting a citation to the Supreme Court’s 1950 decision in United States ex rel. Knauff v. Shaughnessy. The case directly addresses the interaction between the Presidents’ inherent authority over admissibility, and Congress’s rules concerning naturalization. In short, the power to excluded is an executive power. When Congress rules in this area, it is implementing an executive power. I erroneously assumed that people reading my post would be aware of this canonical decision.
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Fong Yue Ting v. United States, 149 U. S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General.
But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e. g., as was done here, for the best interests of the country during a time of national emergency.
In that post, Ian and Leah also refer to my previous statutory argument as “mistaken,” relying on a post Ian wrote about aliens getting stuck in Terminal. I replied to Ian here, noting that his analysis relies on a D.C. Circuit decision vacated by the Supreme Court. Ian did not respond, other than to repeat that I am “mistaken.”
I wish the new blog the best of luck. I’ve long written about the Take Care clause, and whether the President acts in good faith. I’m glad dozens of scholars have now turned their attention to this important topic.