JURIST Guest Columnist Karla McKanders of the University of Tennessee College of Law Immigration Clinic discusses the immigration and constitutional questions surrounding Executive Order 13769 …

Since Donald Trump signed Executive Order 13769, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on January 27, 2017, approximately 60 lawsuits have been filed challenging the order (several of which have been dismissed or rendered moot). One of the primary challenges to the order is that it unlawfully discriminates against foreign nationals from Muslim majority countries. The order is being viewed by some as the president’s veiled attempt to test for future implementation of a ban on immigration by Muslims into the United States. The executive order raises issues relating to balancing the president’s broad authority over immigration, known as the plenary powers doctrine, and his ability to take actions in the name of national security with overarching fundamental concepts of non-discrimination and equality enshrined within the Constitution and 8 U.S.C. § 1152(a)(1)(A) Immigration and Nationality Act (INA) that provide a check on unrestrained discriminatory execution actions.

The lawsuits allege, in part, violations of non-discrimination provision of the INA, 8 U.S.C. § 1152(a)(1)(A). This provision provides:

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.

This provision does not protect individuals applying for temporary, non-immigrant, visas.

The lawsuits challenge the parts of the executive order that halt the processing immigrant and non-immigrant visas from specific countries and the refugee resettlement program. Specifically, section 3(c) of the executive order places a 90-day ban on the immigrant and non-immigrant entry of aliens from 212(f) designated countries (INA, 8 U.S.C. 1182(f)), which include Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. In addition, the executive order suspends the refugee resettlement program for all countries for 120 days (section 5(a)), and indefinitely for Syria (section 5(c)).

The executive order raises issues regarding what constitutes discrimination under the INA where agents of immigration system inherently engage in many forms of discrimination in determining numerical limits for immigrants coming to the US. The significance of the non-discrimination provision of the Immigration and Nationality Act in relation to the executive order must be considered in the historical context in which the provision was passed along with the context in which the President is attempting to invoke his authority over immigration and national security.

In enacting the INA of 1965, Congress eliminated the quota system based on national origin. It was Congress’ intent to equalize immigration opportunities for groups previously subjected to discriminatory immigration laws and practices. In signing the Act, President Lyndon Johnson stated:

This system [referring to the quota system in place] violates the basic principle of American democracy – the principle that values and rewards each man on the basis of his merit as a man. It has been un-American in the highest sense, because it has been untrue to the faith that brought thousands to these shores even before we were a country.

Given the historical context in which the act was passed, it appears clear that Congress and the president intended to extend civil rights protections beyond the borders of the US. Immigration scholars have posited that the INA was passed with a racial egalitarian motivation.

The non-discrimination provision of the INA has rarely been invoked in lawsuits. However, in Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Vietnamese asylum seekers cited the INA in challenging the State Department’s refusal to process visas of detained Vietnamese boat people in Hong Kong. The plaintiffs’ alleged this refusal violated the INA’s non-discrimination provision because it discriminated based on their nationality. The court found that the non-discrimination provision within the INA explicitly prohibited discrimination based on national origin. The court also noted that in the context of this case, it need not decide whether the State Department could ever justify an exception under this provision, such a justification, if possible at all, must be most compelling–perhaps a national emergency.”

Some scholars have read the non-discrimination provision of the INA in conjunction with the president’s authority under 1182(f), as allowing the exclusion individuals when it is in the national security interest of the country. Similarly, they read provision 1152(a)(2) which states that “[n]othing 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,” as granting the president authority to halt the processing of immigrant visas in the national security interest of the US. Contrastingly, in an amicus brief [PDF] filed in the Washington v. Trump case, several law professors argue that 8 U.S.C. § 1182(f), “which authorizes the president to ‘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’ cannot be read to negate the nondiscrimination requirement in 8 U.S.C. § 1152(a)(1)(A), which was passed before section 1182(f).”

In determining whether President Trump’s executive order violates the INA, it has been asserted that the president’s actions cannot be considered in a vacuum. In the Washington v. Trump complaint, plaintiffs cite statements President Trump made prior to his election as evidence of his discriminatory intent to ban nationals from Muslim majority countries. Specifically, examples cited in the complaint include the following:

– On December 7, 2015, candidate Trump issued a press release calling for “a total and complete shutdown of Muslims entering the United States.”

– Candidate Trump compared the Muslim ban to former President Franklin Roosevelt’s decision to intern Japanese Americans during World War II, and stated, “This is a president highly respected by all, [Roosevelt] did the same thing.”

– August 15, 2016, candidate Trump noted that the United States could not “adequate[ly] screen[]” immigrants because it admits “about 100,000 permanent immigrants from the Middle East every year.” Trump proposed creating an ideological screening test for immigration applicants, which would “screen out any who have hostile attitudes towards our country or its principles – or who believe that Sharia law should supplant American law.” During the speech, he referred to his proposal as “extreme, extreme vetting.”

During oral argument before the US Ninth Circuit Court of Appeals regarding the district court’s issuance of a Temporary Restraining Order, the panel of judges pressed the government’s counsel to substantiate whether there exists a national security interest that warrants the president’s halt and ban within his Executive Order. Today, the Ninth Circuit issued an order [PDF] upholding the district court’s temporary restraining order on the enforcement of the President’s Order. The court specifically stated, “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context” (citing Zadvydas v. Davis, that the power of the political branches over immigration “is subject to important constitutional limitations,” also Chadha, rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally). Citing the American-Arab Anti-Discrimination Comm. v. Reno, the Court stated noted that executive decisions related to matters of national security are subject to review when constitutional rights are at stake.

The president’s executive order appears to be an unprecedented departure from the ideals of the 1965 Immigration and Nationality Act, which was enacted in part to ensure nondiscrimination. The numerous lawsuits challenging the executive order reaffirm our system of checks and balances. These lawsuits will determine the limits of presidential plenary powers over immigration and national security while considering the principles of non-discrimination enshrined in the Immigration and Nationality Act and the US Constitution.

Karla McKanders is an Associate Professor at the University of Tennessee College of Law, where she directs UT’s Immigration Clinic and teaches refugee law. She is currently a Visiting Professor and supervising attorney in the Civil Rights Clinic at Howard University School of Law. Her work has taken her around the US and internationally researching the efficacy of legal institutions charged with processing migrants and refugees. In 2011, McKanders received a Fulbright Scholarship to lecture in Morocco at the University of Mohammad V. In addition, her scholarship focuses on immigration federalism and has examined the constitutionality of state and local laws targeting immigrants. Visit her website.

Suggested citation: Karla McKanders, Executive Actions Cannot Supplant the Constitution, Mr. President, JURIST – Academic Commentary, February 10, 2017, http://jurist.org/forum/2017/02/karla-mckanders-executive-actions-cannot-supplant-the-constitution.php.