The European "Schengen Area" Travel Ban and Trump v. Hawaii

CJ Roberts: According to the Plaintiffs' theory, the President could not "suspend entry from particular foreign states in response to an epidemic confined to a single region"

|The Volokh Conspiracy |

Yesterday, President Trump issued a travel ban from the twenty-six European nations that make up the "Schengen Area." The United Kingdom is not covered by the proclamation. The proclamation excludes lawful permanent residents (LPRs), as well as certain close family members of citizens and LPRs.

The Proclamation relied on 8 U.S.C. 1182(f). The Supreme Court considered this provision in Trump v. Hawaii. Chief Justice Roberts's decision opined on the risk of epidemics.

You can hear Roberts's announcement from the bench (via Oyez):

"Now, in addition to the text of 1152(a), which references the act of visa issuance alone, commonsense and historical practice confirm that the provision does not limit the President's authority under Section 1182 to determine who may enter the country. In response to diplomatic disputes both President Carter and President Reagan broadly suspended entry on the basis of nationality. And on plaintiffs' reading the President would not be able to suspend entry from a particular country in the event of an epidemic in that country or even if the United States were on the brink of war with that country. In sum, the proclamation is squarely within the scope of the President's authority under the INA."

Here is full excerpt from the opinion:

Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in § 1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on § 1182(f) to suspend entry "as immigrants by all Cuban nationals," subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked § 1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 C.F.R. 461 (1979), as amended by Exec. Order No. 12206, 3 C.F.R. 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611-612 (1980); see also n. 1, supra.

On plaintiffs' reading, those orders were beyond the President's authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.

In a reprise of their § 1182(f) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are "closely drawn" to address "specific fast-breaking exigencies." Brief for Respondents 60-61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for § 1152(a)(1)(A) to limit the President's flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs' proposed exigency test would require courts, rather than the President, to determine whether a foreign government's conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (explaining that even if the Executive "disclose[d] its . . . reasons for deeming nationals of a particular country a special threat," courts would be "unable to assess their adequacy"). The text of § 1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not.

I scanned the SG's briefs, and did not see any obvious reference to epidemics. This argument may have come from Roberts himself, or from someone else in the majority.

Some critics of the travel ban have argued that Section 1182(f) is unconstitutional on its face. For example, my co-blogger Ilya Somin wrote that 1182(f) may violate the nondelegation doctrine. If so, then President Trump would lack the statutory authority to suspend entry from foreign countries.

I still maintain that the President would have an Article II power in this context to suspend entry, and the existence of this statute merely confirms that power.

NEXT: Flashback to 2005: Judicial Conduct of the 2nd Circuit Opinion concerning Judge Calabresi's Political Comments

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  1. The “Muslim Ban”, in my view, was an impermissible religious bias based restriction and should have been overturned. This Coronavirus ban is an example of a valid use of presidential power, even if the scientific reasoning is not present. To be in favor or both, or against both, is an absolutist perspective that should be rejected.

    1. A selective travel ban on China is impermissible even though the virus emerged from Wuhan. Epidemics know no race or borders,

      1. Epidemics know borders if the carriers of the disease are prevented from crossing.

    2. “even if the scientific reasoning is not present”

      Dr. Fauci disagrees.

    3. The “Muslim Ban” wasn’t a Muslim ban.

      It was a security ban.

    4. When more than 95% of the world’s Muslims are able to travel freely, how can that ban be called Muslim?

      If the intent was to target Muslims, why ignore Indonesia?

      If the intent was to target Muslims, why remove nations previously on the list, such as Chad and Sudan?

      If the intent was to target Muslims, why were Venezuela and North Korea added?

      1. They make up these laws then seriously go around pretending they are true. Even the so-called “Serious People”.

  2. So, if the US were to, before the German declaration of war after Pearl Harbor, declare that travel to the US was open to Jews from Europe, but not to Catholics, the act would be unconstitutional.
    So, Nazis in if Jews are in. Nazis outnumbered German jews about 10/1.

    1. The obverse of that is any immigration act which singles out a specific group for preferential admission (refusenik Jews in Soviet Union or Cuban dry foots for example) would also be impermissible discrimination based on religion (possibly ethnicity) and nationality.

      1. That’s the kind of reasoning that traps people subject to genocides, because the people committing it have the nerve to discriminate against a specific group, and yet you can’t discriminate in their favor just because of that.

    2. I doubt it, since the motivation would not be religion but fear of persecution, which would also, incidentally, cover some non-Jews.

      In the counterfactual where the US does decide to admit refugees from Nazism it’s not like Himmler could convert and come here.

  3. It seems as if it was just yesterday everybody was rolling on the floor and rending their garments over Trump’s first travel bans and how nothing no matter how grave could supersede the sacred right of loved ones to fly into whatever country they want to embrace each other in love. And evil leering Drumpf was stomping around in a thunderstorm tearing brothers and sisters and children and parents and husbands and wives violently asunder.

    And now fast forward to today and countries are banning travel left and right and life goes on and barely anybody even lifts an eyebrow. People are so funny.

    1. countries are banning travel left and right and life goes on and barely anybody even lifts an eyebrow.

      I have heard from a friend in Italy that life is not in fact going on like normal, and that there is quite bit of eyebrow lifting.

    2. It’s almost as though there is a difference between a real crisis and a BS crisis, and everyone knows it regardless of how partisan they are.

      1. Domestic terrorism is a real crisis.

        The flu is not a real crisis.

  4. I find it entertaining.

    Bernie Sanders essentially called the COVID-19 European Travel ban racist…..

    Think about that.

    1. They want to kill us. They hate us.

  5. Let’s say the virus was contained within China and surrounding East Asian countries for a period of time. Banning travel from that region is a rough (and necessarily, indiscriminate) proxy for potential vectors of the disease.

    By the same token, extreme religiosity and terrorism is heightened and certain regions like the Middle East. Placing travel restrictions on that region serves as a rough proxy for the terrorism threat. The fact that the ban was not consistent by, for instance, excluding Saudia Arabia, is not sufficient for the Courts to interpose themselves in this core area of executive discretion.

  6. You gotta take precautions with your Schengen area. Maybe a protective cup.

  7. Merits don’t count. This was Trump. Expect opponents to seek a national injunction and to shop for a forum that might issue it.

    I’m saying this to point out the danger of national injunctions by district courts.

    1. Haven’t seen that statement but whenever someone says that someone “essentially” said this or that it’s necessary to be skeptical.

  8. 1) Another major Trump gaffe?

    The latest travel ban exempts legal permanent residents.
    Anyone else recall details of the first infection in Washington State?
    He was a legal resident who had returned from … Wuhan China.
    Trump’s latest virus blunder would not have prevented him,

    PLUS, the exempted countries closely coincide with .. Trump’s resorts. And why not? Why would anyone ban a US resident from traveling to … a Trump resort?

    2) HIS DUMBEST GAFFE EVER?

    Coronavirus: President Donald Trump handed gift by Fabio Wajngarten, Brazilian press secretary with Covid-19

    President Bolsonaro of Brazil’s press secretary, who met and handed a gift to President Trump on Saturday, has tested positive for the coronavirus. Fabio Wajngarten was pictured standing next to Mr Trump at the president’s Mar-a-Lago resort …He gave Mr Trump a cap that had the slogan “Make Brazil Great Again”. Mr Trump was holding the cap that he had just been given … Later that evening Mr Wajngarten, 44, attended a party at the resort hosted by Kimberly Ann Guilfoyle, 51, who is working as a senior adviser for President Trump’s re-election campaign, and is the girlfriend of Donald Trump Jr, the president’s eldest son.

    The White House says that Trump and Pence refuse to be tested. This leaves two possibilities.

    MOST LIKELY: Trump and Pence will both be tested, but deny it.

    VERY REMOTE: Nancy Pelosi, second in the line of succession to the Presidency, becomes the first female President of the United States.

    Would Trump risk even death, to avoid admitting he ever made a mistake?… as the Clown Car careens forward …

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