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.