Is Trump's 'immigration ban' illegal? Ask the last FIVE presidents

By: Robert Eno | January 30, 2017

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Is Trump’s ban on entry of aliens from seven majority Muslim countries based in legal authority? That is the subject of a Congressional Research Service report written three days after Donald Trump took office. The report lays out the history, since Reagan, of barring admission via presidential action. Barack Obama used this authority more than any president of the last three and a half decades.

Alarmed by Trump’s executive actions? Here’s what you need to know

Rich Lowry over at National Review linked to the report in a blog post earlier this morning. Lowry highlighted the pertinent section of the report (embedded below). Here’s the most important part of what CRS found.

Over the years, Presidents have relied upon Section 212(f) to suspend or otherwise restrict the entry of individual aliens and classes of aliens, often (although not always) in conjunction with the imposition of financial sanctions upon these aliens. Among those so excluded have been aliens whose actions “threaten the peace, security, or stability of Libya”; officials of the North Korean government; and aliens responsible for “serious human rights violations.”

Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the President’s exercise of his authority to exclude aliens under this provision.

NRO’s Andy McCarthy, a former Justice Department official, also laid out the legal basis for the executive action in more detail.

Here’s the report in full. Of particular note is the comprehensive list of every time since Ronald Reagan that the president has barred individuals from entering the country.

Congressional Research Service: "Executive Authority to Exclude Aliens: In Brief" by Conservative Review on Scribd.

According to the report, here are the number of times each president, since Reagan, has limited immigration to specific groups of people:

Ronald Reagan - Five times
George H. W Bush - One time
Bill Clinton - 12 times
George W. Bush - Six times
Barack Obama - 19 times

Not included in the CRS report is that Hillary Clinton's State Department, without a presidential action, suspended all refugee applications from Iraq for six months in 2011.

ABC News reported, on the de facto ban of Iraqis in 2013:

As a result of the Kentucky case, the State Department stopped processing Iraq refugees for six months in 2011, federal officials told ABC News – even for many who had heroically helped U.S. forces as interpreters and intelligence assets. One Iraqi who had aided American troops was assassinated before his refugee application could be processed, because of the immigration delays, two U.S. officials said. In 2011, fewer than 10,000 Iraqis were resettled as refugees in the U.S., half the number from the year before, State Department statistics show.

While one can disagree with the policy, it seems that Trump is well within his rights to issue this order.

Barack Obama far and away used the power to limit immigration more than any other president in recent memory. Perhaps this is why the mainstream media is predicting that Trump’s orders will withstand legal scrutiny. Politico reported, that “Early wins against [the] Trump immigration order may not last.”

One Muslim-rights group, the Council on American Islamic Relations, said it planned a new federal lawsuit Monday charging that Trump’s order is unconstitutional because it amounts to thinly veiled discrimination against Muslims.

That suit could face an uphill battle because courts have rarely accorded constitutional rights to foreigners outside the U.S. However, foreign citizens who are permanent U.S. residents generally have a stronger claim to recourse in the courts. In addition, legal experts say U.S. citizen relatives of foreigners could have legal standing to pursue a case charging religious discrimination.

Still, presidents have broad discretion over the nation's immigration and refugee policy. A 1952 immigration law gives the chief executive the power to bar "any class" of immigrants from the country if allowing them is deemed "detrimental to the interests of the United States."

The media fueled hysteria over the weekend, pushing the narrative that Trump’s executive order was “illegal” and “unconstitutional.” While one can disagree with the policy, it seems that Trump is well within his rights to issue this order.

Editor's note: This article has been updated to clarify that in 2011 the State Department, under Hillary Clinton, suspended all refugee applications from Iraq.

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