Friday, February 10, 2017

Does the Executive Branch Have the Right to Say Who Comes Into the Country and Who Doesn't?

Update: good analysis by the Cato Institute

I feel it is only fair that I weigh in on this issue because I published three posts (1, 2, 3) that indicated I agreed with Judge Andrew Hanen in United States v. Texas that the Executive Branch does not have an unfettered right to say who enters or does not enter the country. Judge Hanen issued an injunction on February 16, 2015, blocking Obama administration policies directed at allowing 108,000 illegal immigrants to stay in the U.S. and be issued work permits.

My discussion here is not on the merits of whether the Obama administration's policies and Trump's executive order do actually stop immigration practices that would be detrimental to the U.S. Rather it is based on the issue of whether the Executive Branch has the sole right to determine what is in the national interest.

The Constitution gives the Executive Branch no powers in this area. The only mention of immigration is via naturalization which is given to the Legislative Branch (Article I, Section 8).

True, the President is the Commander in Chief of the Army and Navy (Article II, Section 2), but only Congress has the right to declare war (Article I, Section 8). So, Commander in Chief is not as powerful as it may seem since he can't use the armed forces for even a defensive war unless Congress allows it.

Patterico gives an excellent overview of the problem with President Trump's executive order. And with the discrimination aspect in particular. Congress has given the Executive Branch authority over immigration but with certain provisos under the Nationality Act of 1965. Under Section 1152 of the U.S. Code.
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.
National defense (U.S.C. 1182 f*) is not cited in any of the sections mentioned above.

Further, if the assertion of something being "detrimental to the interests of the United States" would allow a president to allow people in or not, Judge Andrew Hanen could not have imposed an injunction on the Obama administration allowing 108,000 illegal aliens to stay and be issued work permits. Patterico:
Indeed, Obama tried to justify DAPA, his sweeping unconstitutional amnesty, in terms of our national security. In the United States’s brief in United States v. Texas, at pages 11-12, the Solicitor General wrote:
Deferring action for these individuals, the Secretary continued, would support “this Nation’s security and economic interests and make[s] common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.”
See what I mean? Presidents cite national security for literally everything. If you let them, they will run completely amok — and tell you they have to, so you can be safe.
A second issue is whether Washington state has standing to bring the case. Certainly if Texas did in United States v. Texas, Washington state does too. One of the key injuries Texas asserted was that it would have to subsidize driver's licenses issued to illegal immigrants. (I'm not kidding.) From Judge Hanen's opinion:
1. Article III Standing
a. Injury
The States allege that the DHS Directive will directly cause significant economic injury
to their fiscal interests. Specifically, Texas argues that the DHS Directive will create a new class of individuals eligible to apply for driver’s licenses,14 the processing of which will impose substantial costs on its budget. Plaintiffs rely on Texas’ driver’s license program to demonstrate how the costs associated with processing a wave of additional driver’s licenses will impact a state’s budget. Texas’ undocumented population is approximately 1.6 million, and Plaintiffs’ evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA. Doc. No. 64, Pl. Ex. 14 ¶ 33; Pl. Ex. 24 ¶ 6. Under current Texas law, applicants pay $24.00 to obtain a driver’s license, leaving any remaining costs to be absorbed by the state. See Tex. Transp. Code Ann. § 521.421. If the majority of DAPA beneficiaries currently residing in Texas apply for a driver’s license, it will cost the state $198.73 to process and issue each license, for a net loss of $174.73 per license. Doc. No. 64, Pl. Ex. 24 ¶ 8. Even if only 25,000 of these individuals apply for a driver’s license—approximately 5% of the population estimated to benefit from the DHS Directive in Texas—Texas will still bear a net loss of $130.89 per license, with total losses in excess of several million dollars. Id.
Okay, so if driver's license subsidies (which a state does not have to give) afford standing to ask for an injunction, pretty much anything that proves probable loss of income or probable need for more spending will do.

My bet is that if the case goes to the Supreme Court, the same thing will happen as with United States v. Texas. The Court will split 4-4, and the lower court judgment will stand as happened to Judge Hanen's injunction (which was upheld by the U.S. 5th Circuit Court of Appeals).

*U.S.C. 1182(f) Suspension of entry or imposition of restrictions by President

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.


MAX Redline said...

Interesting, TD.

True, the President is the Commander in Chief of the Army and Navy (Article II, Section 2), but only Congress has the right to declare war (Article I, Section 8). So, Commander in Chief is not as powerful as it may seem since he can't use the armed forces for even a defensive war unless Congress allows it.

Bush went to war in Iraq because Congress (including Hillary and Lurch) authorized it. Yet Obama droned multiple countries without such authorization. In fact, Obama made a point of circumventing Congress whenever it suited him. Ferret-top is merely following the trail that Obama blazed.

Moreover, I do not believe that at SCOTUS there would be a 4-4 split, as there will be a 9-Justice SCOTUS considering the issue.

Further, as you note at the appendage to your post, and as Ferret emphasized by reading the statute into the public record, POTUS may decline to admit aliens or impose restrictions upon entry as deemed appropriate.

On the other hand the use of the term, "he" is incredibly offensive to those who think that Pantsuit should be running things in the White House today.

T. D. said...

"the use of the term, "he" is incredibly offensive to those who think that Pantsuit should be running things in the White House today." Heh. I forgot to be politically correct, Max!

I think that unless the Republicans complete the job started by the Dems of removing the filibuster, getting the 9th justice on rapidly enough to hear the case will be difficult.

More likely a new iteration will be generated which doesn't have the legislative and constitutional problems of the current executive order. That was not an option the Obama admin had because by definition illegal aliens cannot be lawful.

Yes, there is nothing in the Constitution to stop the executive from military actions that are short of declared war. And, Congress has allowed war actions for up to 60 days without Congressional approval.

You are absolutely correct, that Trump is following in Obama's footsteps and taking advantage of the expansion of executive power Obama opened up. Both think that what the nation need is a strong leader to enforce his/(her!) vision of how government should run. Consent of the governed not required.

The Cato Institute article has some good insight on how earlier provisions like 1182(f) passed in 1952 are usually interpreted in light of later conflicting provisions like 1152 passed in 1965.

MAX Redline said...

I forgot to be politically correct

Ha! Don't you just hate when that happens?

Personally, I've grown more than a bit tired of politicians who ignore that whole "consent of the governed" thing, as I think it's pretty important.

T. D. said...

Well, you gotta make mistakes sometimes. Heh.

Yes, consent of the governed is not in vogue. Because . . . the big fish know what's best for us.