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SCOTUS on immigration restrictions: A sovereign republic – if you can keep it

Conservative Review

Those who still believe we are a sovereign nation won an important victory today in Trump v. Hawaii, but the war in the lower courts will continue unless Congress shuts it down.

Congress and the president have the full power to deny entry to any non-citizen or class of non-citizens seeking to enter this country for any reason – good or bad. Those decisions are exclusively up to the political branches of government, to be debated in the political realm, and there is no opening for the courts to get involved. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government.” (Kleindienst v. Mandel).

This should have been the decision handed down by the court today on Trump’s so-called travel ban, which had already been watered down by lower courts to a mere executive policy of increased vetting of immigrants from dangerous countries. The Supreme Court should have issued a strong rebuke to the lower courts, and the opinion should have been 9-0.

Unfortunately, while this opinion was a relatively strong win for the president and for sovereignty, every justice but Justice Thomas left the door open for  the lower courts and smart, truculent lawfare experts to continue chipping away at the “plenary power doctrine” protecting our sovereignty.

What the court was deciding

Even Trump’s original order was not a complete travel ban, much less a ban on Muslim immigration, as it left out 92 percent of the world’s Muslims. It merely suspended immigration from a small subset of predominantly Muslim countries on a temporary basis due to the rampant concern of terrorist activity. But that order never earned its day in the high court; the lower courts won by forcing the president to change his order twice. Many provisions got watered down:

  • The president clearly showed that this is all about information-sharing, not banning people, because Iraq and Sudan were taken off the list, and Chad, which was added later, was subsequently taken off after it began cooperating with data-sharing.
  • Unlike the first order, no caps were placed on refugees, and the provision prioritizing Christians (which is actually the spirit of refugee law) was removed.
  • Syrian migration was banned outright in the first order but not in the subsequent order before the courts.
  • Nationals from all countries on the list are given waivers and exceptions to be brought into the country under the final order.
  • Unlike in the first order, people who already have visas to enter the U.S. from those countries were not included in the exclusion.

Thus, if the president ever wanted to go further to protect our security, a proposition many conservatives support, the lower courts would return to their mischief immediately and say those provisions are not covered by today’s ruling.

What did the majority opinion say?

Even though lower courts will likely come back for more bites at limiting the power of the president over sovereignty, Chief Justice Roberts, writing for the 5-4 majority, was clear about much of the plenary power doctrine. Here are some key observations:

Delegated authority from Congress to exclude is unlimited (mostly): For over a year, I have noted that, all other provisions of law notwithstanding, section 212(f) of the INA (§1182(f)) is clear as a bell in granting the president full power to shut off all immigration and that there are no limits on this power. I have suggested that the president use this power to shut off border migration. Roberts was almost 100 percent clear that this provision shuts down any other question of presidential authority. “By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts. As we noted on Monday, the Supreme Court already addressed and affirmed the unrivaled power of 1182(f). It’s amazing that it took 16 months of wrangling with lower courts to affirm what the court already addressed. That’s why I’m suspicious this decision will fully tamp down the lower court shenanigans.

Roberts does seem to buttress his point by noting that Trump gave a very substantial reason for the shutoff and did a lot of executive legwork behind it, but it’s unclear if Roberts would rule that an 1182(f) shutoff that didn’t contain a “12 page Proclamation” that is “more detailed than any prior order issued under §1182(f))” would be insufficient. Thomas was right when he tersely wrote in his concurrence that “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President.”

Standing: The government rightfully argued that the courts don’t even have jurisdiction to review a case denying a visa. However, the majority opinion noted that the court skirted the question for this case and decided it on the merits. I’m happy the justices arrived at the right decision on the merits, but the fact that the Supreme Court is fine with Article III courts reviewing denial of visas for people who never even entered the country is disturbing.

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