Forbes Interview on How to Limit Presidential Power Over Immigration

In it I explain how to reform a federal law the Supreme Court has interpreted as giving the president nearly unlimited power to ban migrants from entering the United States.


The Statue of Liberty.


In an interview with Stuart Anderson in Forbes, published today, I discuss possible strategies for limiting presidential power over immigration by reforming a federal law that the Supreme Court has interpreted as giving the president virtually unlimited power to bar potential immigrants from entering the United States. Here is an excerpt:

Section 212(f) [of the Immigration and Nationality Act]… gives the president the power to bar entry into the U.S. by any foreign national whom he deems to be "detrimental to the interests of the United States…"

The Trump administration claimed – and the Supreme Court, in Trump v. Hawaii, the travel ban decision, largely agreed – that this gives the president authority to bar the entry of almost any noncitizen for virtually any reason he wants….

[I]f Section 212(f) really does give the president virtually unlimited authority to bar noncitizens from entering the U.S. whenever he pleases, then it would run afoul of the "nondelegation" doctrine, which limits Congress' ability to delegate its powers to the executive.

Admittedly, it is often difficult to tell what qualifies as an excessive delegation. But the delegation of unlimited power to exclude any alien for any reason is surely a violation of the nondelegation principle if anything is….

If the Supreme Court is serious about nondelegation, it will eventually have to either strike down Section 212(f), interpret it more narrowly, or create what would be an ad hoc exception to nondelegation rules for immigration policy….

The best option would be to just repeal [212(f)] entirely. As Trump has shown, the power granted by the statute is ripe for egregious abuse….

Congress could [also] replace Section 212(f) with more limited authority allowing the president to bar entry only for specified reasons, such as a threat to national security or participation in organized crime or the like….

Finally, if Congress thinks the president needs the power granted by Section 212(f) to be able to take quick action in the midst of a sudden crisis, it could impose a sunset clause on exclusions imposed by the executive under Section 212. After, say, 60 days, such restrictions would automatically expire unless Congress affirmatively passes a bill to extend them. This would give the president flexibility to deal with emergencies, but also prevent him from using Section 212(f) to enact permanent immigration restrictions, as Trump has done with his travel bans.

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  1. I would argue that the President has inherent delegated National Security powers and banning aliens is part of those powers.

    1. The Importation Clause of the Constituion expressly gives this power to Congress, not the President. The President has had it for a long time, but only because Congress chose to delegate it.

  2. The trouble with case law that attempts to limit what a president is allowed to do based on his motive/reasons for doing it, is that often the motive is a perfectly legitimate one but the courts simply won’t believe it. Trump’s travel ban on six countries is a perfect example: EV wrote a whole amicus brief on the assumption that Trump’s motive could not be anything but anti-Muslim animus — but I sincerely believed, and I think Trump and most of his other supporters believed too, that a real national security threat existed because those countries didn’t do an adequate job of vetting people before letting them get on planes and travel here. If the courts join EV in cavalierly dismissing that real concern as ridiculous, they will make case law that prevents the president from protecting our country.

    1. Obama exhibited anti-Muslim bias when he banned ISIS members from coming here. We know Obama was anti-Muslim because he made a big spectacle of rejecting the Islam of his father in favor of Christianity.

  3. At the same time (and I am not a lawyer) Trump seems to be frustrating section 1158 of the law with respect to asylum. Asylum seekers to not have to be at a “designated port of arrival.”

    Granting asylum is a judgment call but allowing people to apply for asylum is the law of the land. We have a racist president with his own agenda. He has said “we are full” meaning that we had no room for immigrants.

    1. Nope, Obama made it more difficult for Cuban refugees to get legal status because in his determination most were “economic refugees”. So Trump is simply making the same determination that Obama made with respect to asylum seekers.

        1. Nope, they are both right. If people are attempting to take advantage of our asylum laws then the president must take action to stop them. Plus Obama and Trump both acted out of humanitarian reasons because Cubans were dying at sea trying to get here and Central Americans are dying in our southern border—so remove the carrot.

          1. Asylum is a law passed by Congress establishing a potential benefit for which some people might qualify. People who might be entitled to that benefit try and get it and that’s what they’re expected to do.

            Some people might “take advantage” of a legal tax break, some people might “take advantage” of a stand-your-ground law, and some people might “take advantage” of asylum. If they’re following the law, why should the president take action to stop any of them?

            1. Ask Obama. I agree with Obama and Trump. And Julian Castro and Cory Booker argue that Latino men disproportionately commit rape and domestic violence so do you really want those “bad hombres” in America??

      1. DCH is talking about the application process, not the final determination.

        Obama made it harder to get asylum. Trump is making it harder even to apply.

        1. Obama made it harder to apply by sending Cubans to detention facilities instead of their relatives’ homes. Cory Booker famously walked 4 Cuban women fleeing domestic violence across the border straight into a detention facility because of Obama’s executive order. Both Booker and Julian Castro made a point to say Latino men disproportionately commit rape and domestic violence…bad hombres indeed!

  4. Obama signed an executive order making it more difficult for Cuban refugees to get legal status…because Obama is anti-Republican. 😉

  5. A 60-day sunset clause isn’t useless if you’ve got a POTUS+lawyers with some small, residual respect for the intent of the law.

    It’s not very effective if it’s possible to declare a new, slightly different emergency every 59 days, and you’ve got a legal team that thinks finding and exploiting such loopholes is their main job.

  6. It isn’t some insane concept that a nation state has an absolute right to police its borders including regulating entry/exit without limitations. It is pretty much understood and accepted throughout the entire world.

    1. The President is not the nation state.

      A telling error to make.

    2. If you literally mean “absolute” then yes it’s an insane concept and you need to be called on it.

      Does it apply to citizens? Banning travel by citizens on the basis on political viewpoint, race, religion, etc? Pre-emptive detention of people just because they might decide to travel?

      And you mention controls on exiting…without limitations. That’s what’s called a prison. One essential characteristic of a free country is that you can leave if you don’t like it.

      I’m going to assume that in your hostility to pro-immigration opinion here you lost it a little (i.e. a small case of insanity) and didn’t mean it literally.

  7. So riots not only cured all COVID in the US it also cured the entire world? WHAT A MIRACLE!

  8. I agree we need to do this. 20 year immigration moratorium and don’t let a President circumvent it and wave in a bunch of tech workers for big business lobbyists.

  9. I agree with Professor Volokh that the Constitution places power to regulate immigration in Congress’s hands. While I think that Congress’ delegation of wide discretion over war and foreign policy matters to the President is constitutional – more so than for ordinary legislation – nonetheless I agree that what Congress can delegate, it can take back. Accordingly, Congress has the right and power to cabin the President’s discretion and set stricter standards for when it can be exercised. If it wishes to it could eliminate the discretion involved here entirely, repealing the relevant statute and asserting sole power to determine when normal immigration rules can be suspended.

    1. Apologize, Professor Somin.

  10. I’m glad we’re back to deciding Congress can act on this. The attempts by certain wayward members of the judiciary to take over the decision of who gets an entry visa and who doesn’t were neither wise nor well considered.

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