The Volokh Conspiracy
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President Trump's Executive Order About Exclusion and Removal of Aliens
The order would exclude and remove aliens who "bear hostile attitudes" to our "founding principles."
In immigration law, there are two broad categories of executive actions: exclusion and removal. The former policy prevents aliens from entering the country, and the latter policy removes aliens already in the country. As a general matter, aliens in the United States benefit from a host of constitutional, statutory, and treaty-based protections, reinforced by robust judicial review. But aliens seeking entry stand in a different position. They generally lack any constitutional rights and can only apply for admission through fairly intricate statutory or treaty-based processes. And a denial of a visa is generally subject to a doctrine of consular non-reviewability. In practice, an alien can't sue the federal government if a visa is denied.
Still, American citizens and other organizations can sponsor, or seek the admission of certain aliens. Indeed, the courts have held that when the government denies entry to an alien, that denial can violate the First Amendment rights of U.S. Citizens. This doctrine stems from the case of Kleindienst v. Mandel (1972). American professors were allowed to challenge the denial of entry of a Marxist professor from Belgium, on the ground that the professors wanted to hear the professor's message. I've long thought Mandel was wrongly decided. The professors should have no basis to challenge the denial of entry of an alien based on the professors' asserted First Amendment interest. Indeed, with the age of Zoom, the notion that the United States has to admit a professor to talk to college students does not fly.
Four decades later, a fractured Court in Kerry v. Din (2015) held that an American citizen has some due process interest to ensure a family member can seek entry to the United States. I do not think Justice Kennedy's plurality opinion in that case stands for much anymore. More recently, Trump v. Hawaii (2018) broadly read the President's power to exclude aliens. And, despite unified Democratic government, Congress did not actually modify that statutory authority. It should be no surprise, then, that President Trump seeks to use this authority.
One of President Trump's new orders provides some broader parameters over who will be admitted--but it also speaks to the types of aliens in the United States who will be removed.
The policy provides:
And the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.
I'm sure immigration groups will seize upon this standard as a violation of the First Amendment. Again, Aliens inside the United States have some First Amendment rights. Although, under Bluman v. FEC (2012), they do not have full rights to support political campaigns. And the courts are divided about whether aliens have Second Amendment rights.
The order also seeks to remove aliens who have hostile attitudes to the American government:
(c) Whenever information is identified that would support the exclusion or removal of any alien described in subsection 2(b), the Secretary of Homeland Security shall take immediate steps to exclude or remove that alien unless she determines that doing so would inhibit a significant pending investigation or prosecution of the alien for a serious criminal offense or would be contrary to the national security interests of the United States.
Again, aliens in the United States, even if here unlawfully, can assert First Amendment rights.
Section 1182(f) provides that the President can deny entry to "any class of aliens into the United States would be detrimental to the interests of the United States." The statute does not define what "detrimental" means. Generally, that term has concerned some national security interest. But Trump would go further:
(c) Evaluate all visa programs to ensure that they are not used by foreign nation-states or other hostile actors to harm the security, economic, political, cultural, or other national interests of the United States.
What does it mean for an alien to harm the "cultural" interests of the United States?
Moreover, entry is denied to people who have undermined "fundamental constitutional rights" including free speech and freedom of religion.
(d) Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens' rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists;
If I'm reading this right, certain students who participated in anti-Israel protests will be denied visas. Universities were prudent to encourage their students to return to the United States before January 20. But their visas may not be renewed.
Finally, the order calls for a policy of "proper assimilation."
(f) Evaluate the adequacy of programs designed to ensure the proper assimilation of lawful immigrants into the United States, and recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States; and
There are no specifics here.
