Monday, December 7, 2015

What if Donald Trump Had Plenary Power? by Michael Kagan


What if Donald Trump Had Plenary Power? by Michael Kagan

Today , Donald Trump called for a "total and complete shutdown of Muslims entering the United States." I assume that readers of this blog do not need any convincing that this is a hateful, disgusting proposal, and it is breathtaking that in 2015 such an idea could be promoted by a leading candidate for a major party nomination.

I write to highlight a different, but also disturbing reality:  What Trump is proposing may already be authorized by statute, so that a newly inaugurated President could implement this proposal without new authorization from Congress. Even worse, it would not clearly be unconstitutional under existing case law.

The fact is that what Trump is proposing is not unprecedented. In fact, the foundation of immigration law was a statute that did something fairly similar – the 1882 Chinese Exclusion Act. This was followed in 1924 by the Asian Exclusion Act, vestiges of which remain on the statute books (see INA § 212(a)(8), which makes inadmissible “any immigrant who is permanently ineligible to citizenship” (sic) – a reference that in the 1920s applied to most Asians, and especially Japanese).

Mr. Trump would be more likely to rely on Section 212(f) of the Immigration and Nationality Act, which provides:

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.

This provision would seem to let a future president bar Muslims from entering the country as soon as he takes the oath of office.

But could such a measure be constitutional? The disturbing answer is that it there is no clear precedent saying that it would not be.

In the Supreme Court, the Chinese Exclusion Act led directly to the birth to the plenary power doctrine, which remains at the center of American immigration law. Plenary power originally meant that the federal government had nearly unreviewable authority over immigration. Recent cases have narrowed the doctrine, mainly in the realm of procedural rights. But plenary power remains largely intact with regard to substantive decisions about who can enter the United States.

Trump’s plan should pose a problem under the Equal Protection Clause. But the Supreme Court has never applied equal protection to substantive immigration decisions. While excluding an entire religion would be shocking, our immigration policies are already quite discriminatory in other ways, for example making Mexicans wait more than a decade longer for visas than similarly situated people, simply because of their national origin.

The fact that there is no case law does not necessarily mean that Trump’s proposal would survive in the courts. I want to believe that it is so shocking that federal judges would find a way to strike it down. But to do so, they would have to break new ground. In other words, an anti-Muslim policy might survive, unless the Supreme Court is willing to do something it has never done before.

So long as plenary power survives, substantive immigration remains – constitutionally, at least – a creature of the late 19th century. Our immigration policies have become more open since the 1920s, but only because our mainstream national politicians became more restrained about implementing policies based on overt prejudice.

Clearly, we can no longer count on such restraint.


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