What Power Does the President Actually Have Over Immigration
Donald Trump, the presumptive Presidential nominee for the Republican Party has called for a ban on certain immigrants entering into the country on several occasions. Trump first proposed a temporary ban on Muslims entering the country after the terrorist attack in San Bernadino, California. More recently, he has stated that he wishes to restrict immigration from parts of the world with ties to terrorism. He claimed to have the power to do this by stating in a June 13, 2016 speech: “The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons. Now, any class — it really is determined and to be determined by the president for the interests of the United States. And it’s as he or she deems appropriate.” Apart from the obvious discrimination, falsehoods, and logical problems inherent with these proposals, if Trump were elected president, what could he actually do? Any president has the authority to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States” under Title 8, Section 1182 of the U.S. Code, part of the Immigration and Nationality Act of 1952. This suspension of entry can remain in place as long as the President considers it necessary. This is a pretty broad power. The Supreme Court ruled in the 2015 case of Kerry v. Din that an immigrant can be denied a visa on national security grounds without the government giving a specific reason. It was likely originally written in 1952 with fear of communists in mind and has since been used to ban the entry of any alien involved in war crimes. Obama has been claiming this broad authority over immigration to choose to not deport large groups of people. The Supreme Court is currently weighing the merits of U.S. v. Texas, a case regarding President Barack Obama’s use of executive action to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and to expand the 2012 Deferred Action for Childhood Arrivals (DACA) program. Though the case is looking at several issues, one of them is whether Obama’s action violates the Take Care Clause (Article II, section 3) of the Constitution, which states, “[The President] shall take Care that the Laws be faithfully executed.” Under his plan, Trump would essentially use this same broad presidential power Obama claims to limit immigration rather than expand it. As of yet though, it’s unclear whether a potential President Trump could do this, as the power has never been applied as broadly as Trump would like to. The Supreme Court ruling may shed some light on the issue. The ruling is due before the end of June. For what it’s worth, the President at the time of the passage of the law granting this presidential power in 1952 would certainly have had an issue with Trump’s proposals and plan. At the time, President Harry Truman raised serious concerns about several portions of the law, calling it discriminatory and problematic. He actually vetoed the Immigration and Nationality Act based partially on these concerns, though Congress overrode his veto. Truman had some choice words for the discriminatory quotas set out in the law at the time. One can imagine he would say the same thing about Trump’s proposal. “The idea behind this discriminatory policy was, to put it baldly, that Americans with English or Irish names were better people and better citizens than Americans with Italian or Greek or Polish names. . . Such a concept is utterly unworthy of our traditions and our ideals. It violates the great political doctrine of the Declaration of Independence that ‘all men are created equal.’ It denies the humanitarian creed inscribed beneath the Statue of Liberty proclaiming to all nations, ‘Give me your tired, your poor, your huddled masses yearning to breathe free.’” For assistance with all of your legal immigration needs, contact Maximilian Law.