The Volokh Conspiracy
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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.