The "NO BAN Act" Would Modify The Statutory Regime That Authorized President Trump's Travel Bans

This statute would obviate the statutory analysis in Trump v. Hawaii.

|The Volokh Conspiracy |

In March, the NO BAN Act was introduced in the House as H.R. 2214. (I only learned of it today). This bill would modify the statutory regime that President Trump relied on to implement his various travel bans. Moreover, this bill would obviate Chief Justice Roberts's statutory analysis from Trump v. Hawaii. Finally, this bill recognizes many of the textual difficulties with Hawaii's case that I identified early on in the litigation.

8 U.S.C. 1182(f)

Section 3 of the bill would modify 8 U.S.C. 1182(f). This statute currently provides the President with broad discretion to "suspend" the "entry" of "classes of aliens" for "such period as he shall deem necessary."

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.

During the travel ban litigation, the plaintiffs argued that this statute violated the non-delegation doctrine. I contended that it did not violate the non-delegation doctrine. My co-blogger Ilya Somin takes the opposite position.

In any event, the new bill would remove any doubts about the non-delegation doctrine. This revision would put very, very specific limits on how and when the President could suspend entry.

First, the statute only allows the President to "temporarily" suspend the entry of aliens "if the Secretary of State, in consultation with the Secretary of Homeland Security, determines, based on specific and credible facts, that the entry of any aliens or any class of aliens into the United States would undermine the security or public safety of the United States or the preservation of human rights, democratic processes or institutions, or international stability." Second, the President must "narrowly tailor the suspension or restriction, using the least restrictive means, to achieve such compelling government interest." In effect, the decision to suspend entry would be subject to strict scrutiny. Third, the President must "consult Congress" before issuing the suspension, and "provide Congress with specific evidence supporting the need for the suspension or restriction and its proposed duration." Fourth, if the President fails to brief Congress within 48 hours after the suspension, "the suspension or restriction shall immediately terminate absent intervening congressional action." There is no wind-down period, like with the War Powers Resolution. The suspension terminates right away. Fifth, the statute authorizes judicial review–both declaratory and injunctive relief–as well as class action certification. Sixth, the statute says "Nothing in this section may be construed as authorizing the President, the Secretary of State, or the Secretary of Homeland Security to act in a manner inconsistent with the policy decisions expressed in the immigration laws." Ha! As if there is a single set of "policy decisions" that can be derived from immigration laws. The entire body of jurisprudence is so fragmented and balkanized.

This bill, if enacted, would make it virtually impossible for any President to use this authority. And if a President does use this authority, a court would have a very, very easy time enjoining the suspension. Or Congress could simply deem the consultation inadequate, in which case the suspension terminates on its own. The suspension power becomes a dead letter.

If enacted, Section 1182(f) will impose significant restrictions on the President's authority. Trump v. Hawaii did not directly address the extent to which the President's power to suspend entry derives from Article II. The Court did not reach this issue because Section 1182(f) provided the requisite authority. But now that such statutory authority is lacking, the statute–as applied–may intrude on the President's inherent authority. I discussed the President's Article II powers to exclude on pp. 148-151 on this article.

I have doubts whether a President Biden would even sign this bill, as it would curtail his ability to engage in foreign policy prerogatives. I think OLC would deem this provision unconstitutional.

8 U.S.C. 1152(a)

Section 2 of the bill would modify 8 U.S.C. 1152(a)(1)(A). I've added the revisions in red.

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 or a nonimmigrant visa, admission or other entry into the United States, or the approval or revocation of any immigration benefit because of the person's race, sex, religion, nationality, place of birth, or place of residence, except if expressly required by statute, or if a statutorily authorized benefit takes into consideration such factors.

The statute expands the scope of this nondiscrimination provision. It previously only applied to "the issuance of an immigrant visa." This statute did not extend to the operative phrase in Section 1182(f)–that is, "entry." In February 2017, I was one of the first people to argue that Section 1152 was simply irrelevant to the travel ban–President Trump was denying entry, not denying immigrant visas. All of the lower courts, as well as the entire legal academy said I was wrong. In Trump v. Hawaii, Chief Justice Roberts adopted my analysis wholesale. The Court explained that there is a distinction between entry (Section 1182) and immigrant visas (Section 1152). He wrote:

In any event, we reject plaintiffs' interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the pool of individuals who are admissible to the United States. . . . Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which § 1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the "issuance" of "immigrant visa[s]," without mentioning admissibility or entry.

Now, the proposed bill would mention entry, thus obviating Roberts's reading of the statute.  Section 1152 would now expressly apply to "a nonimmigrant visa, admission or other entry into the United States, or the approval or revocation of any immigration benefit."

A brief note on terminology: Congress is not "overturning" Trump v. Hawaii. (It is all to common to say that the Lilly Ledbetter Fair Pay Act of 2009 "overturned" Ledbetter v. Goodyear Tire (2007)). Congress cannot "reverse" a Supreme Court decision for the same reason the Supreme Court cannot "strike down" or "nullify" an act of Congress; Congress writes the laws, and the Court's interpret them. If the law changes, then the Courts interpret the new statute. The Court's decision stands as a valid construction of the law as it existed at the time.

Second, the proposed bill would expressly add "religion" as a protected class. Most people would say, Huh, how is religion not already a protected class? It isn't. During the travel ban litigation, I also contended that the Court's Establishment Clause cases are purely domestic. (See this article). Congress routinely considers religion with respect to the issuance of visas. Now, with this revision, it would be illegal to discriminate on the basis of race, as well as religion, with respect to entry. There is no need to rely on the Court's Establishment Clause jurisprudence.

I think the revisions of Section 1152 are constitutional with respect to the issuance of visas. That matter is squarely within Congress's authority. The President has no independent constitutional power to issue visas on his own. However, I have some doubts about whether Congress can place restrictions on the President's power over "entry." If the power to suspend entry is an inherent power, then Section 1152 may run afoul of Article II. The restrictions in Section 1152 are far less severe than those in the new Section 1182. And I don't think the discriminating on the basis of race or religion, with respect to entry, would violate the First and Fourteenth Amendment's. Such classifications would, consistent with Trump v. Hawaii, be subject to rational basis review.

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  1. How does it help the US to give foreign nationals the opportunity to sue the US to be allowed to visit? The cost of the court involvement alone seems like it would exceed the economic value of some nominal number of visitors.

    Courts are involved in enough already. We don’t need courts further involving themselves on behalf of foreign nationals in foreign jurisdictions.

    At some point you’d hope that the Trump-deranged Dems would stop, take a deep breath, and skip voting for something like this that will harm the US for decades and put visa issuance in the hands of unelected judges who don’t have the information the Department of State might have.

    Are those visitors from Yemen really that important? Why?

    1. Consider: We Dems don’t think it would harm the US for decades. We think these bans will harm the US for decades.

      1. It’ll harm the Democrat Party in preventing the importation of third world voters.

        1. The Yemen thing wasn’t that though. More pure derangement. And opportunistic attempts to use judges to seize control of parts of the government despite the election.

      2. A 90 day ban harms the US for decades? How so?

        1. Reputation as a friendly place for noncitizens.

          Performative nativism does the US no favors.

          1. Dems often seem to care a lot more about what foreigners think than about what Americans think. I don’t remember the last time Dems chose the American perspective when it was even a little different from the globalist, internationalist perspective that someone outside America might hold.

    2. Ben_ : “Are those visitors from Yemen really that important? Why?”

      Apparently they are considered important – as empty political theatrics for Trump. Don’t you remember how we got in this mess? On the campaign trail DJT discovered a “Muslim Ban” was a popular applause line; only Mexico paying for the wall delivered more orgasmic cheering.

      But he needed some pretence of a policy behind this, so the ban was said to be an interim measure of some months while new security procedures were vetted and installed. Of course the crowds didn’t hear any of that; they just shrieked on hearing the word “ban”.

      So Trump as president announces his bans and immediately it’s held up in the courts well over a year, many times longer than the interim period supposedly needed for the new procedures. But the administration never started developing those measures. Per testimony during one of the court cases, the White House admitted they hadn’t even started the process.

      Why? Because the reason behind it was always a sham. Because Trump’s political base didn’t give a damn about new “security procedures” – they just wanted their ban. Because it was never more than a crude political stunt…..

      1. That’s a reason to give foreign nationals on foreign soil the right to sue the US government for entry into the US? And to let unelected judges have the final say in visa issuance?

        You know Trump will be out of office in 2025. You really want derangement or “in my opinion it wasn’t warranted this time” to be the reason the US can never again make policy decisions about entry visas?

        Next time the policy may be critically needed and thousands of Americans will die because we let in a bunch of terrorists or death-cultists or contagious people or foreign soldiers planning an attack. Will you care when that happens? Are American’s lives meaningful to you at all?

        1. You’re missing the point in two ways. First, your hysteria about Americans dying is ironic. All the countries which had been the source of terrorist plots and actions against the U.S. were excluded from the ban. Why? Economics were more important. The countries left to ban had never been the source of a single incident. That’s what happens when policy becomes a meaningless joke.

          Which brings us to the more important point : Executive control of immigration is a essential responsibility, both because America’s openness to the world is one of the country’s core principles, and as being critical to national security. So what happens when you turn that responsibility over to a dime-store buffoon? A cartoon farce results, like Trump’s ban. There inevitably is a reaction and probably an overreaction. See: When the president of the United States is a huckster clown, everyone loses – often in ways long-term and difficult to see.

          Another example : Trump tells the dupes he’s going to wall off Mexico, then ignores the issue almost two years. In December of 2018, the Senate passes a bill with no wall funding and Trump gives an afternoon speech saying he’s pleased with the budget.

          Overnight he takes harsh criticism from the likes of Coulter and Limbaugh; by next morning a panicked Trump had changed his position one-eighty-degrees. The result is a useless government shutdown and (when that didn’t work) Trump stealing congressionally appropriated monies to fund what the legislature explicitly denied him.

          Now, the ability of a president to respond to emergencies is absolutely crucial. What happens when you turn that duty over to someone with a child’s responsibility and the ethics of a carnival barker? The case is now slowing heading towards SCOUS and you must hope they slap Trump down, otherwise the congressional right of appropriation becomes meaningless. But what then becomes of a future president’s ability to respond to emergencies?

          See: When the president is an ugly joke, everyone loses.

          1. I get it. Orange Man Bad. One day you may be able to have other types of thoughts and then you may be able to consider why we shouldn’t make permanent policy based on Orange Man Bad.

            1. No, you don’t get it. I bet you personally find great pro-wrestling-style entertainment in Trump’s antics, don’t give a damn they’re just an empty con, and don’t care about any long-term damage.

              Until you do, and then are astounded (astounded !!) people are overreacting to your entertainment. What the hell did you think would happen ?!?

              1. They certainly control everything about you. They occupy your entire mind with no capacity left over for any other thoughts.

              2. Psychiatrists can prescribe anti-obsessive medications if you’d like to be able to think about something besides Orange Man Bad. Always having to think about only one thing — you don’t have to suffer through that. Help is available.

  2. How can you have just found out about this?

    Since you have, I need to point out it was introduced to stop Trump from banning travel from China. Now do you think we should have passed it? In this case Trump used it in exactly the way it was intended, despite corporate media and all opposition howling to stop the China travel ban.

    1. “Now do you think we should have passed it?”

      We haven’t passed it. It hasn’t even had one full vote in the House yet.

      If you think this bill has any chance of passing in the current Senate and ending up on the President’s desk, I suggest you check your meds.

    2. Prof. Blackman is attentive to detail, so he must have known that it was not introduced in March, and therefore was not introduced to stop Trump from banning travel from China. It was introduced in April. Of 2019.

      1. And yet it still hasn’t gone to the floor of the House for debate/vote. One might begin to suspect that the Democrats in the House are not actually serious about passing it.

        1. It’s almost as if many many many bills are introduced and don’t go anywhere.

  3. IANAL, and this provides two clear examples of why most people think lawyers like quibbling more than anything.

    Splitting hairs between denying entry and denying a visa is nonsense to everyone not a lawyer. You may as well say Disney is not banning visitors, they are just not selling tickets.

    “Overturning a law” and “overturning the Supreme Court” are perfectly cromulent phrases. The distinction is insignificant to just about everybody who is not a lawyer. Even if you explain that an overturned law could be revived by later Supreme Court rulings, no one cares.

    Except lawyers, of course. The universe surely doesn’t.

    1. I think the difference is important for just the reason he mentions: using the more common, but incorrect, terms confuse the relationship between those two branches of government.

      1. It’s only important to legal quibblers. Most people understand the three branches and aren’t easily confused over them (I’m not counting people who have a motive for pretending to confuse them).

        If any lawyers feel maligned by the public, they could do worse than understand that these two distinctions are classic lawyer quibbling.

  4. So here’s a bill that no president will sign, that no Congress will ever pass unless both houses are controlled by a party opposite to that of the president (and even then there would have to be veto-proof majorities), and that was proposed for a bad reason (when the Democrats thought that accusing Trump of anti-Asian bigotry for banning travel from China would be a political winner). I guess that’s why not many people are commenting on this post: the whole thing is of zero significance. (Me? I’m only commenting because I like to mock.)

    1. I don’t think I see Biden signing this, but it’s not ridiculous – there’s some strong negative tribalism on the left at the moment. And as we’ve seen from this President, that impulse can lead to some nonstandard moves.

      1. That’s like suggesting that the Clarence Thomas confirmation would leave the Democrats permanently opposed to sexual harassment. Didn’t happen. For better or worse, partisanship overrides both principles and tribalism.

        1. I don’t think you understood what I was saying because I don’t get your analogy at all.

          Just as Trump ended a lot of Obama policies simply because they were Obama policies regardless of their level of support generally, Biden will have pressure to curtail what was seen as Trump-era excesses even if he personally might not like limiting executive power.

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