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Sadly, Trump Could Use Executive Authority to Ban Muslims from Entering U.S.

By   /  November 19, 2016  /  Comments Off on Sadly, Trump Could Use Executive Authority to Ban Muslims from Entering U.S.

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By Joshua Arons

In a disappointing turn of events, Donald Trump, the recently elected President of the United States could ban Muslims or people from terror ridden countries from entering our country through invoking a provision of the  1952 Immigration and Nationality Act.  Provision 212 (f) of this Act holds that whenever the President finds that the entry of aliens or of any class of aliens in 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 aliens or any class of aliens, as he may deem appropriate. President Trump’s statement on banning Muslims from entering the United States has recently reappeared on his website, and his promise to ban Muslims after the November 2015 terrorist attacks, was a hallmark of his campaign. This blog argues that if President-Elect Trump decides to invoke a nationality test,  such decision would pass constitutional muster under the Immigration and Nationality Act of 1952 and through immigration legal precedent. Unfortunately, judicial review is also extremely limited as it pertains to executive orders by the President of the United States, and it would be difficult to challenge President-Elect Trump’s order based on nationality.

Prior jurisprudence has established that the use of a nationality test does not violate the Constitution because courts usually defer to presidents on matters of foreign policy.  Moreover, the Immigration and Nationality Act of 1952 allows national country specific decisions, and this could give President-Elect Trump additional authority under his use of executive powers.   Further, unlike religion, nationality is not a protected class, and the First Amendment wouldn’t be a barrier. Thus, Trump could decide to make another more bigoted decision and refuse to allow people within an Iraqi, Syrian, or Saudi passport, arguing that this shutdown is about national security and not about religion. Another major legal justification for Trump using a nationality or regional test to refuse to allow immigrants and refugees from predominantly Muslim countries is the “plenary power doctrine”. This immigration law doctrine gives the President the inherent authority to exclude non-citizens from entering the country and ensures that noncitizens don’t have the equal protection rights in the same way that American citizens do. Thus, President-Elect Trump could easily invoke this doctrine to hold that he has the executive authority to not allow those from terror ridden countries because he is worried about attacks on our homeland and that these groups of people are not entitled to equal protection rights.

Although President-Elect Trump has made it abundantly clear that he wants to completely ban all Muslims from entering the United States, banning people from entering the United States from certain Muslim majority countries, is merely stating the same thing. President-Elect Trump’s campaign pledge began with “a complete shutdown” of all Muslims entering the United States and then morphed into a ban on immigration from nations “compromised” by terrorism. President –Elect Trump, unfortunately, has precedent under Kleindienst v.Mandel,[1] in which the Supreme Court established that there only needs to be a “facially legitimate and bona fide” basis for visa denial. Thus, President-Elect Trump could invoke this case to maintain that the United States has a “facially legitimate and bona fide” basis for refusing to allow immigrants from terror ridden countries because the United States has a legitimate concern that there could be future terrorist attacks like the recent ones in Brussels or Paris. Although it is completely un-American and against our national security interests, President Trump does have some legal precedence under our country’s immigration laws to invoke these bigoted policies that target Muslims.

Another major reason as to why President Trump could harshly forbid immigration from terror stricken countries is because prior jurisprudence has established very little judicial review pertaining to reviewing decisions prohibiting foreigners from entering the country.  For example, Michael Kagan, a law professor at the University of Nevada-Las Vegas discussed that the Supreme Court established that the judiciary has little or no role in reviewing decisions prohibiting foreigners from entering the country.  One of the primary reasons that courts have established minimal judicial review pertaining to a nationality test is because, immigration authority is deeply rooted in our Constitution’s enumerated powers, specifically naturalization, and foreign affairs. Thus, the courts would essentially allow Trump to reach his initial intended goal of barring Muslims from entering the United States through barring immigration from certain regions of the country because of his enumerated foreign affairs powers.

One of the primary factors that there is such little judicial review of the President’s war and foreign affairs powers is because courts made it very for so called-enemies of state to have standing. This was apparent in Khalid v. Bush,[2]  which held that foreigners imprisoned at Guantanamo had no legal basis to challenge their situation. Although President Trump’s proposal to ban emigrants from terror ridden countries does not involve any deportation measures, people who want to immigrate from these countries will have minimal legal protection.  Thus, the Supreme Court and the lower courts will have less of a compelling reason to side with immigrants, because of the lack of judicial review pertaining to immigration matters.

Conclusion

Unfortunately, President-Elect Trump could have a constitutional claim to bar immigration from certain Muslim majority countries due to a provision of the Immigration and Naturalization Act of 1952, and immigration law precedent.  President-Elect Trump originally proposed to ban all Muslims from entering the United States but decided that he would achieve the same result by barring immigrants from terror ridden countries, that all happen to be majority Muslim. Moreover, courts have established that there is limited judicial review pertaining to Presidential war and foreign affairs power. These policies will cripple our immigration system and send a message to the world that we are an intolerant country. We all must be hopeful that President-Elect Trump does not decide to pursue this hateful and regressive proposed policy.

 

[1] Kleindenst v. Mandel, 408 U.S. 753, 770 (1972) (noting that a facially legitimate and bona fide basis is sufficient to have a visa denial).

[2] Khalid v. Bush, 355 F.Supp.2d 311, 313 (D.C. 2005) (noting that foreigners imprisoned that Guantanamo Bay had no legal remedies because there were enemy combatants and were not citizens of the United States of America).


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