Thursday night, the 9th Circuit Court of Appeals decided to continue blocking President Donald Trump’s recent executive orders on immigration. This is a deliberate attempt to shift control over immigration from the executive and legislative branches to the judicial branch in order to grant foreigners a constitutionally protected “right” to enter the U.S. The 9th Circuit’s decision is way off-base. Here’s why:
The Supreme Court has previously held that federal courts are prohibited from hearing cases asking them to declare illegal the exercise of a power that the Constitution assigns exclusively to the other branches of government. This rule is referred to as the “Political Question Doctrine.” It preserves the separation of powers by keeping the courts from assuming functions that should be performed by the legislature or the executive. The role of the courts is to interpret and apply the law, not to set the national security agenda, conduct foreign affairs, or craft our immigration policies.
President Trump is on firm constitutional ground. Nearly every American court that has addressed this issue since 1889 has ruled in his favor.
Applying the Political Question Doctrine, the Supreme Court has repeatedly said that the powers to legislate and implement the conditions for admitting aliens into the United States belong, respectively, to Congress and the executive branch. Article I, Section 8, Clause 4, of the United States Constitution specifically grants Congress the power to establish a “uniform Rule of Naturalization.” The power to pass laws governing who may enter and remain in the United States is implied in that power.
Article II, section 2, makes the president commander-in-chief of the armed forces and assigns him the power to conduct foreign affairs. In Harisiades v. Shaughnessy, the Supreme Court concluded that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a Republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
This premise is further supported by an uninterrupted line of judicial precedent that began with Ping v. United States in 1889 and continues to the present. In 1950, the Supreme Court summarized the issue with simple language in Knauff v. Shaughnessy, stating that it is “not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien.” The notion that the regulation of all aspects of immigration belongs to the legislative and executive branches is known as the “Plenary Power Doctrine.”
All of the above is fancy legal-speak for: No federal court should be considering any claims about these executive orders because, as an exercise of the powers reserved exclusively to the president by the Constitution, they fall squarely within a class of cases which the Supreme Court has said the judicial branch has no business reviewing.
But let’s presume for a second that a reviewing court did not buy the argument that the executive orders are a valid exercise of the president’s national security and foreign affairs powers. They should still be dismissed out of hand for failure to set forth a justiciable claim. The president’s actions are backed by explicit congressional authorization via 8 U.S.C. § 1182(f), which allows him to ban anyone he deems detrimental to the interests of the United States. The president has simply attempted to carry out a program that is entirely consistent with the power legislatively delegated to him. Congress has clear authority to regulate immigration and pursuant to the Plenary Power and Political Question doctrines, the exercise of that power is not subject to judicial review. Therefore, any rational judge should find that these lawsuits are utterly without merit. (The U.S. District Court in Boston, Massachusetts, did just that.)
What about claims that the executive orders are prohibited by anti-discrimination laws or that § 1182(f) is unconstitutional? 8 U.S.C. § 1152 has been touted by the mainstream media as making it illegal to deny a visa on the basis of an applicant’s race, religion, or nationality. But, in reality, that statute only prohibits Department of State personnel from unilaterally deciding to, for example, grant all qualifying Frenchmen visas ahead of Spaniards — because the Constitution gives Congress the power to determine numerical limitations on available visas for individual foreign states. It has absolutely nothing to do with the president’s executive power to determine whether the admission of any aliens, or classes of aliens, may be detrimental to the interests of the United States. The pundits are simply wrong.
The media has similarly mangled the analysis of whether § 1182(f) is constitutional. In Kliendienst v. Mandel, the Supreme Court held that an unadmitted, nonresident alien has no constitutional claim to be admitted to the United States. Referring to lawful permanent residents, the Supreme Court held in Matthews v. Diaz, that, “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” In plain English, the court’s consistent and lengthy lines of precedent on these issues mean: 1) The refusal to admit anyone who is not a citizen, or lawful permanent resident, of the United States doesn’t violate the Constitution, or any other law; and 2) lawful permanent residents, although possessing a limited legal claim to readmission after traveling abroad, may still be denied entry to the United States for a variety of reasons, including having been declared detrimental to the interests of the United States pursuant to § 1182(f).
What will happen next? That’s difficult to predict. This case is likely to be appealed. While the 9th Circuit seems determined to ignore the separation of powers in pursuit of its own agenda, President Trump is on firm constitutional ground. Nearly every American court that has addressed this issue since 1889 has ruled in his favor. It’s hard to believe the Supreme Court will ignore over a century of precedent and adopt the novel approach preferred by the 9th Circuit, but we’re living in an era where even the courts have become highly politicized.
Matt O’Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as assistant chief counsel in U.S. Immigration and Customs Enforcement’s New York District. He is currently the director of research at the Federation for American Immigration Reform (FAIR).