Why Trump's Immigrant Ban Is Unlawful: Chapter and Verse

This article first appeared on the Cato Institute site.

This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States.

He altered the proposal this year to specify "suspending immigration from nations tied to Islamic terror." He told CNN that this was actually intended as an expansion of the Muslim ban.

He also said, "People are pouring in from regions of the Middle East," but that he would "stop that dead, cold flat."

He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.

Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.

At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump's plan claim that Congress authorized such bans by pointing to a provision of section 212 (f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:

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.

Related: Tougher restrictions on immigrants won't work

This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202 (a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump's new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied.

"Place" of birth is actually a broader restriction than nationality, meaning that even if Trump's ban applied to sub-national or regional levels, it would still be illegal.

Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders.

Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident.

The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings and immediate relatives of legal permanent residents.

Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.

Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all non-immigrants—guest workers, tourists and other temporary visitors—could conceivably be subject to this discriminatory policy.

It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.

Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.

Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions.

"I'm looking now at territory. People were so upset when I used the word Muslim," he told NBC. "I'm OK with that because I'm talking about territory instead of Muslim." If he maintains this position, he will clearly be in violation of the law.

Trump's Plan Is a More Extreme Overreach Than Anything President Obama Tried

Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason.

By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.

Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law.

To be sure, there is an interesting parallel here between the Trump plan and President Obama's attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.

President Obama proposed using his general authority in section 274A(h)(3)(B), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children.

Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization.

President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.

Donald Trump's plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so.

This power grab is so much more far-reaching than President Obama's that virtually any court will likely view it with great skepticism.

It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry.

If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.

Legislative History Supports a Ban on Discriminating by National Origin

The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants.

During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned "the coming of Chinese laborers to this country." In 1917, it " excluded from admission" all "persons who are natives…of any country…on the Continent of Asia" from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.

In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality.

President Truman vetoed the bill, inveighing against it as a violation of the "great political doctrine of the Declaration Independence." He specifically objected to "powers so sweeping" that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as "public interest" (powers first included in a bill in 1950 that he had also vetoed).

Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.

All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits.

Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to "eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era." In other words, the law was intended to repudiate the 1952 act and all that came before it.

The Judiciary Committee Report on the bill stated in its first line: "The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act."

President Lyndon Johnson summed up the law best in his signing statement:

This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here.… The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.

Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place.

Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.

In other words, the explicit intent of the 1965 law was to "abolish" the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:

the president said: 'The principal reform called for is the elimination of the national origins quota system.…' In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.…

The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act.

Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would "eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution." In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, "the basic discrimination" of the 1952 act.

To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.

Court Precedent Backs a Ban on National Origin Discrimination

The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin.

The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.

In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew "an explicit distinction between Vietnamese nationals and nationals of other countries." It wrote:

Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service's interpretation proffered by the Department.

The court stated that the government's "proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity."

The court also disregarded the administration's argument that "it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests." It stated:

Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred "rational basis."…

The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:

In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of "race, sex, nationality, place of birth, or place of residence." This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.

Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to "procedures for the processing of immigrant visa applications or the locations where such applications will be processed."

When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.

Past Presidential Actions Do Not Support the Legality of Trump's policy

Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality.

President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality. As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.

No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.

In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors.

A Washington Post report from 1980 discussed the ban applying only to "students, tourists and businessmen"—the main categories of nonimmigrants—and multiple articles from The New York Times framed the issue as only impacting "foreign visitors." Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.

Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa.

It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump's blanket ban.

In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration.

Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president's actions were challenged in the courts, so their legality remains untested.

The Breadth of the Trump Plan Is Unprecedented

These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because "they have totally been" compromised by terrorism.

CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with "terrorist safe havens" would eliminate all immigration from a dozen nations.

President Obama's attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president's power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.

For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.

David J. Bier is an immigration policy analyst at the Cato Institute's Center for Global Liberty and Prosperity. Angelo A. Paparelli contributed to this post.

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