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“Any alien coming to this country must or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to, and consequently, whatever risque he may incur in that capacity is incurred voluntarily, with the hope that in due time by his unexceptionable conduct, he may become a citizen of the United States.” ~Justice James Iredell, 1799

There is a lot of confusion swirling around the events that transpired this weekend as a result of Trump’s executive order on immigration. Make no mistake: every word of Trump’s executive order is in accordance with statute. 

It’s important not to conflate political arguments with legal arguments, as many liberals and far too many “conservatives” on social media are doing.  While the timing and coordination of implementing this order might have been poorly planned, we shouldn’t allow that to undermine the broader need to defend our sovereignty.  For courts to violate years’ worth of precedent and steal our sovereignty should concern everyone.      

What the order actually does

Among other things, the key provisions at the center of the existing controversy are as follows:

It shuts off the issuance of all new immigrant and non-immigrant visas for 90 days from the following seven volatile countries: Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Any non-citizen from those seven countries (not “all” Muslim countries) is excluded from entering the country during this time-period (which usually means they won’t be able to board a direct flight to America). After 30 days, the secretary of state and secretary of homeland security must submit a report to completely revamp the vetting process going forward.

Within 60 days, countries will have to submit any information that the administration determines necessary, pursuant to the findings of this report, in order to adjudicate a visa application and ensure they are properly vetted. Any country that fails to submit this information will not be able to send foreign nationals to our country. All the while, the ban can be extended and expanded at any time.

In addition, the entire refugee resettlement program is suspended for four months pending a complete investigation of the program and a plan to restructure it and prioritize those who are truly in danger of religious persecution. After 120 days, the program may resume, but only for those countries Secretaries Kelly and Tillerson determine do not pose a threat. The program from Syria is completely suspended until the president personally gives the green light.

[T]his was actually a judicious and cautious approach from Trump.

With regards to refugees and those who seek to enter from the seven countries temporarily excluded, the order gave discretion to the State Department and DHS to admit individuals on a case-by-case basis for important reasons, even during the temporary moratorium.  

Statement of principles on the right of a country to exclude non-citizens

Those who want to immigrate: There is no affirmative right, constitutional or otherwise, to visit or settle in the United States. Period.

Based on the social contract, social compact, sovereignty, long-standing law of nation-states, governance by the consent of the governed, the plenary power of Congress over immigration, and 200 years of case law, our political branches of government have the power to exclude or invite any individual or classes people for any reason on a temporary or even permanent basis – without any involvement from the courts.[1] Congress has already delegated its authority to the president to shut off any form of immigration at will at any time.

Immigrants already here: Those already admitted to this country with the consent of the citizenry have unalienable rights. They cannot be indefinitely detained. However, they can be deported for any reason if they are not citizens. In Fong Yue Ting v. United States (1893), which is still settled law, the court ruled that Congress has the same plenary power to deport aliens for any reason as it does to exclude them and that the statutory procedures and conditions for doing so are due process.[2] Congress has established the process for deportation of those already here.  However, as long as a legal permanent resident leaves the country he has no affirmative right to re-enter.[3] Either way, they have absolutely no right to judicial review other than to ensure that statutes are properly followed. 

But can Trump prevent those with green cards from re-entering the country?

The statute is clear as day. The Immigration and Nationality Act (§ 212(f)) gives the president plenary power to “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.” Clearly, the president has the authority to block any non-citizen – including refugees, green card holders, and foreign students – from entering the country.  Also, for purposes of deportation, there is no difference between a green card holder or a holder of a non-immigrant visa.  No foreign national who has not yet obtained citizenship has an affirmative right to re-enter the country.   

Is this a ban on Muslim immigration?

No, it’s a moratorium on immigration or re-entries from seven individual countries and a temporary moratorium on refugees from all countries, subject to case-by-case exceptions.

Why didn’t Trump place restrictions on immigration/visas from Saudi Arabia and other Muslim countries? 

That’s probably a good idea.  But this was actually a judicious and cautious approach from Trump to start with low-hanging fruit.  These seven countries are failed states or enemies of the U.S. (in the case of Iran).  As such, there is absolutely no way to share data with the host countries and properly vet them.  Somalia has been one of the biggest trouble spots.  The other countries are marred in Islamic civil wars.  Moreover, these are the countries that existing law targets for travel restrictions, and that Obama’s own DHS listed last year

Why would Trump include green card holders in the ban on re-entry?

Both liberals and conservatives expressed concern over hundreds of individuals going over to fight for ISIS.  We are already limited in how we can combat this growing threat among U.S. citizens.  Given that it is completely legal to exclude non-citizens upon re-entry, Trump extended the ban to legal permanent residents as well.

If a Somali refugee is travelling back to Somalia (so much for credible fear of persecution!), government officials should have the ability to prevent that person from coming back when necessary. Obviously, there are some individuals from these seven countries who already have green cards and we might not want to exclude. That is why the order grants discretion to the State Department to issue case-by-case exemptions for “religious persecution, “or when the person is already in transit and denying admission would cause undue hardship.”  A CBP agent is always stationed at any international airport from which these individuals would board a direct flight to the United States (Paris and Dubai, for example). That individual would not allow anyone covered by this ban onto a U.S.-bound flight unless he grants them a hardship exemption.

Indeed, it appears that green card holders returning yesterday from those seven countries were all granted entry

What’s with the chaos at the airports and the courts?

Henceforth, CBP agents will not allow individual aliens from those seven countries to board a flight to the U.S. So the chaos will end.

The problem arose from the 100 or so individuals that were already in transit when the order took effect. When they arrived at American airports, they were detained at customs. Standing at this point is not tantamount to being on American soil.[4]  However, a federal judge in New York issued a stay and prevented the feds from sending two individuals back on a flight. Other judges have prevented officials from even detaining such persons. It’s unclear if federal agents might have made a mistake and released some of these individuals before ordering them to leave the country. Once they are released onto American soil, any effort to remove them is treated as a deportation, not an exclusion, and is subject to the due process afforded them by congressional statutes (not the Constitution).  

Thus, it’s unclear if the stay even applied to any element of the order or whether it applied to anomalous circumstances or particular actions taken by federal officials that overstepped the order. 

It’s also confusing because many contemporary judges have no respect for our sovereignty and have been gradually chipping away at the plenary power of Congress (or the president, pursuant to statute) to exclude aliens re-entering the country, despite years of settled law. If courts are indeed violating our sovereignty, this is the very grave danger I warned about in Stolen Sovereignty.  Either way, it should not affect the ability of the administration to enforce the order against those who want to prospectively board flights to return.

Editor's note: An earlier version of this piece transposed the time frames for visa restrictions and the vetting report. The error has been corrected.

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[1] Nishimura Ekiu v. United States, 142 US 651 (1892). [“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”]

[2] Fong Yue Ting v. United States, 149 US 707 (1893). [“the right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”]

[3] As Justice Felix Frankfurter observed, the notion that immigration policy is “entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government…" “[T]here is not merely 'a page of history'… but a whole volume,” wrote Frankfurter, that any alien not legally domiciled in this country is as if he is standing outside our soil as it relates to due process rights or judicial review to overturn a deportation. Galvan v. Press 347 US 531–32 (1954). What better authority on this subject than Justice Robert Jackson, the famous Nuremberg prosecutor who was a champion of due process rights (he wrote the dissent in Korematsu v. United States, the Japanese internment case) and regarded as one of the greatest writers of his time? Here is what he had to say: “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting).

[4] United States v. Ju Toy, 198 US 253 (1905); Shaughnessy v. Mezei, 345 US 215 (1953).


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