The Legality of the 3/6/17 Executive Order, Part I: The Statutory and Separation of Powers Analyses

On March 6, 2017, President Trump issued a new executive order on immigration that superseded an order he signed on January 27. For an in-depth discussion on the first order, please see my two-part series on Lawfare (Part I and Part II) and my forthcoming essay in the Texas Law Review See Also, titled The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump.

I will analyze the new executive order in three parts. In this post, I will address whether the new order violates the Immigration and Nationality Act or the Administrative Procedure Act, as well as address the broader separation-of-powers framework. Part II will assess how the new order comports with the Fifth Amendment’s Due Process clause. Part III will analyze how the new order fares under the Establishment and Equal Protection clauses.

Scrutinizing the Basis for the New Order

The starting point of this analysis is not Rudy Giuliani, but rather, Robert Jackson. The new executive order makes explicit what was implicit in the old order. The President is relying on an express delegation from Congress, augmented by his own Article II powers:

In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "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." 8 U.S.C. 1182(f) (emphasis added).

Under Justice Jackson’s canonical concurrence in Youngstown Sheet & Tube Co. v. Sawyer, in separation-of-power disputes, when the President relies on an amalgamation of an express Article I delegation and his own Article II authorities, the action is “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” To put it in more familiar terms, the appropriate standard-of-review hews towards rational basis review, such that the “burden of persuasion would rest heavily upon any who might attack it.”

In Washington v. Trump, however, both the district court and the Ninth Circuit panel did the exact opposite, and asked the government to provide evidence that aliens from the seven countries successfully perpetrated terror attacks. This line of questioning—beyond any strict scrutiny I have ever seen in the national security context—misplaced the burden of persuasion. That said, the government did not do itself any favors, as the original executive order failed to make even a fleeting effort to connect nationals from the seven-named countries to the specter of terrorism. For example, the order referenced the 19 foreign nationals involved in the 9/11 attacks—most of whom were Saudi, a country not subject to the travel ban.

The revised order attempts to remedy that deficiency in a different way. Rather than quantifying whether aliens from these countries engaged in terrorist attacks—which was always the wrong question—new findings instead establish that the United States lacks sufficient diplomatic relations with these six nations to trust their screening mechanisms. For example, Iran and Syria do “not cooperate with the United States in counterterrorism efforts” at all. Libya, Somalia, and Sudan provide “some” level of cooperation. Yemen “has been supportive” of these efforts,” but “has not been able to cooperate fully.” (Iraq, which was on the previous list, was excluded, in light of our government’s “close cooperative relationship” with the ally).

Because the United States cannot fully rely on the six nations’ efforts to screen out possible terrorists and “share or validate important information about individuals seeking to travel to the United States,” the order concludes, nationals of these six countries “continue to present heightened risks to the security of the United States.” The critical change between the old and new order is to shift the locus from terrorist aliens (of whom there was scant evidence) to uncooperative nations (of which there is ample evidence).

Critics of the new order have largely lost sight of that the fact that its purpose is to afford the government an opportunity to determine whether in fact these six countries, or other countries, are providing adequate information to properly screen aliens seeking entry into the United States. During the pendency of this review, and in light of the arguably unreliable information being provided, the President concluded that “the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.” Thus, for 90 days, the President ordered a “temporary pause on the entry of [certain] nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.”

The temporary pause is intended to provide the administration an opportunity to ascertain how reliable the shared information is and whether these foreign nations—three of which are “state sponsors of terrorism” and have been “compromised by terrorist organizations”—can be trusted to provide accurate travel documents. However, the order does not rest its case solely on a country’s vetting mechanism. To bolster its case, the order makes the broad finding that “since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.” Further, the order states that the “Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” (The validity of this latter figure is subject to some debate). On these bases, the President deemed the entry of such aliens to be “detrimental to the interests of the United States” under 8 U.S.C. 1182(f).

Further, this interim policy may be but a prelude to a permanent order. The President instructs the Secretary of State, in consultation with the Secretary of Homeland Security, to prepare a list of all countries that do not currently “provide adequate information.” Ultimately, if the other nations do not provide satisfactory information, then the Secretaries are to provide the President with “a list of countries recommended for inclusion” in a new proclamation. In other words, these six countries are only the start.

Under Jackson’s framework, the President should be afforded the widest latitude in choosing which countries to subject to a temporary travel ban. This order provides a far stronger legal basis to justify the temporary ban. However, if the Ninth Circuit continues to demand proof that aliens from these countries have succeeded in inflicting carnage on American citizens, then the order cannot stand, and, quite literally, the Constitution becomes a “suicide pact.” (In Part II of this series, I will discuss how Youngstown intersects with the First and Fifth Amendments).

Distinguishing between “Entry” and “Visas”

Debates over the effect of the earlier executive order were clouded by the complex statutory interaction between the denial of entry and the revocation of visas. The old order, on its face, did not require the cancellation of any visas. However, contemporaneously with the issuance of the January order, the State Department issued a memorandum announcing that the agency would “provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Somalia, Sudan, Syria, and Yemen.” These revocations raised no statutory issues. 8 U.S.C. § 1152(a)(1) prohibits only nationality-based-discrimination with respect to the issuance, not the revocation, of visas.

Regardless of whether these actions were legally justified, the new executive order abandons this path. Section 12(c) provides that “[n]o immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.” Section 12(d) offers an added benefit to anyone whose visa was already rescinded under the old order, as he or she “shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.” This analysis tracks my reading of the statutory scheme: an alien with a valid visa can still be denied entry during the ninety-day period. “Entry” and “visas” are distinct concepts, and Sections 12(c) and 12(d) reaffirm this bifurcation. However, there is some irony in allowing an alien to maintain a visa, yet denying him ultimate entry to the United States. This could allow such an alien to get trapped in the airport terminal, which inures to no one’s benefit. As perverse as it may seem, temporarily revoking a visas more optimal to allowing an alien to board a plane, knowing he or she would be denied entry.

However, Sections 12(c) and 12(d) do not entirely obviate the allegation that, with respect to the issuance of visas, the policy still discriminates on the basis of national origin.

National Origin Discrimination

8 U.S.C. § 1152(a)(1) provides:

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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.

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

As a threshold matter, § 1152(a)(1) applies only to immigrant visas, not to non-immigrant visas. Therefore, there is no statutory objection to the government denying non-immigrant visas based on nationality, and the statutory analysis is confined to a policy that restricts immigrant visas to aliens based on their nationality.

Can the Secretary establish a policy that imposes heightened vetting restrictions on aliens from certain nations? To state this question more precisely, would “extreme vetting” for aliens seeking immigrant visas from the six nations amount to discrimination on the basis of nationality?

The answer to these questions will ultimately be resolved based on the interchange between subparagraphs (A) and (B), and in particular, on how the courts choose to interpret the phrase “determine the procedures for processing of immigrant visa applicants.”

Read narrowly, “procedures” can refer to a standardized set of logistics that aliens seeking immigration visas have to follow, such as what documents to submit. This ministerial reading is supported by the latter part of subparagraph (B), which allows the Secretary to establish “the locations where such applications will be processed.” For example, the Secretary could establish that certain overseas consulates can process immigrant visas, and others cannot. Under this narrow reading, the Secretary could not impose heightened screening mechanisms that discriminate based on nationality. This narrow reading of subparagraph (B) is certainly plausible, but I do not think it is persuasive, based on both the text and history of the provision.

First, nothing in the statute compels such a cramped interpretation of “procedures,” in the logistical or ministerial sense. In foreign affairs, where the Secretary enjoys wide-ranging powers, this statute is best read to allow him to establish “procedures” concerning the issuance of immigrant visas, even if those “procedures” treat differently aliens from different nations. This reading is adopted by the D.C. Circuit’s 1997 opinion in Legal Assistance for Vietnamese Asylum Seekers v. Department of States. Judge Sentelle’s decision for a unanimous panel concluded that subparagraph (A)’s “prohibition against nationality discrimination does not apply to” the Secretary’s “decisions of where to process visa applications” under subparagraph (b). “These determinations,” the court concluded, “are left entirely to the discretion of the Secretary of State.” It is certainly true that this case addressed the “location” prong of subparagraph (b), and not the “procedure” prong. I can think of no reason, however, why two elements of the same sentence should be treated differently. Indeed, the remainder of Judge Sentelle’s analysis makes their congruence even stronger. The statute imposes no “substantive standard” concerning locations for visa processing, the court found, “against which the Secretary’s determination could be measured.” Likewise, the statute imposes no “substantive standard” concerning the “procedures” for seeking a visas “against which the Secretary’s determination could be measured.” As a result, the court concluded, determinations under subparagraph (B) are not subject to judicial review. “These determinations are left entirely to the discretion of the Secretary of State,” Judge Sentelle found. Such deference is especially warranted because determining the appropriate processes for visa applications from different nations requires “balancing complex concerns involving security and diplomacy.” For an Article III Court, “there is ‘no law to apply.’”

Second, the history of subparagraph (B) strengthens this construction. To begin, it is helpful to trace the complicated posture of Vietnamese Asylum Seekers. During an earlier trip to the D.C. Circuit in 1995, the court considered whether the Department of State violated the INA “in drawing an explicit distinction between Vietnamese nationals and nationals of other countries when refusing to process the visas of the screened out Vietnamese immigrants.” Judge Sentelle, writing for a divided panel, found that it did. Citing what is now subparagraph (A), the court found that “Congress could hardly have chosen more explicit language,” and that the government “has no authority to discriminate on the basis of national origin, except perhaps by promulgating regulations in a time of national emergency).” Some scholars, looking only at this precedent, have concluded that the old Executive Order amounted to unlawful discrimination. However, if you Shepardize the 1995 decision, you will find that the Supreme Court vacated that opinion. Why?

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which added subparagraph (B) to § 1152(a)(1).

SEC. 633. AUTHORITY TO DETERMINE VISA PROCESSING PROCEDURES.
Section 202(a)(1) (8 U.S.C. 1152(a)(1)) is amended—

(1) by inserting “(A)” after “Nondiscrimination.--”; and
(2) by adding at the end the following: “(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.”.

Indeed, when Judge Sentelle considered the issue for the first time in 1995, there was no specific statutory carve-out that allowed the Secretary to determine the “locations,” notwithstanding the general prohibition on nationality-based discrimination. However, three weeks after subparagraph (B) was added, the Supreme Court unanimously vacated Judge Sentelle’s initial ruling. Citing this new provision, the D.C. Circuit panel held unanimously (as I noted above) that determinations concerning the “locations” of visa applications were not subject to judicial review.

Solicitor General Drew Days’s brief to the Supreme Court in Vietnamese Asylum Seekers, which relied on pre-IIRIRA law, explained that at the time of the enactment of the 1965 INA, Congress routinely imposed heightened screening mechanisms for certain countries based on security concerns:

The INA therefore does not prohibit the State Department from making distinctions based on nationality in prescribing the form, manner, or place of immigrant visa processing. To the contrary, in enacting Section 222, Congress “consciously decided to leave the determination of place of immigrant visa application to the Secretary of State.” 59 Fed. Reg. 39,953 (1994). In fact, when Section 202(a)(1) was enacted, the State Department had long had in place special security procedures governing the processing of visa applications filed by aliens from certain countries, and that practice continues. See Declaration of Cornelius D. Scully, III ¶¶ 3-10 (Aug. 7, 1995) (Lisa Le C.A. App. 416-424). The Department also has numerous consular venue rules turning on nationality, which reflect security, diplomatic, and management concerns, including the location of consular officers who have expertise about conditions in particular countries. (p. 17).

What was the best way to understand this post-1996 regime? As a rejection of the old quota system, which allocated visas based on nationality. The brief explains:

Indeed, the anti-discrimination language was added to Section 202 in 1965 as part of Congress's abandonment of the old immigration system, which employed national-origin quotas. See Pub. L. No. 89-236, § 2, 79 Stat. 911-912. Congress replaced the former system with one that provides (subject to certain exceptions) for “issuance of immigrant visas without regard to national origin.” See H.R. Rep. No. 745, 89th Cong., 1st Sess. 19 (1965); id. at 9, 10-13, 17; see also S. Rep. No. 748, 89th Cong., 1st Sess. 12-13, 21-22 (1965). Section 202(a)(1) was intended to address the subject of relative “preference” or “priority,” and the corresponding disadvantage of “discrimination,” in the allocation of immigration visas. Nothing in its background suggests that it was intended to address consular venue. (pp. 16-17) (emphases added).

Under the Solicitor General’s reading, the non-discrimination provision applies with respect to the “allocation” of visas, and not the procedures or locations by which visas are issued. Were that not the best reading before 1996, it became a perfect reading after 1996, wherein subparagraph (B) was added. It provides, once again:

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Keep in mind that subparagraph (B) was added in the wake of Judge Sentelle’s decision. Without the need to resort to the legislative history, this provision was directed precisely at the D.C. Circuit’s holding. And subparagraph (B) did not refer only to “locations,” but also “procedures.”

And if you don’t believe me, listen to stalwart Deputy SG Edwin S. Kneedler explain the issue to Justice O’Connor back in 1996, with repeated references to “procedures” that countenance nationality (13:50).

In short, subparagraph (A) prohibits nationality-based quotas, but subparagraph (B) permits the Secretary to consider nationality when determining what “procedures” ought to apply for issuing visas. Nothing prevents the Secretary from deciding aliens from Nation X must submit additional information—that is “extreme vetting”—based on complex diplomatic and security concerns. Even if you disagree with this construction of the statute, which is much harder to do after 1996, Judge Sentelle’s holding about non-reviewability applies with full force to the “procedures” adopted by the Secretary: there is no “law to apply,” and the policy is not subject to judicial review.

The Administrative Procedure Act

The Hawaii Attorney General (pp. 36-37), as well as a law professors’ amicus brief (p. 9), have argued that the President’s executive order denying entry to certain aliens violates the Administrative Procedures Act (APA) because it did not go through the notice and comment process. I could not find a single precedent to support this proposition.

8 U.S.C. § 1182(f) provides, in relevant part:

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.

The key phrase in that statute is “by proclamation.” Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

There are about five dozen entries in the Federal Register that reference “[§] 1182(f)” in the context of denying entry to certain aliens. How many were formal rulemakings? Zero. Why? The executive order isn’t a rule, but an articulation of the United States’ foreign policy. In the words of Solicitor General Verrilli’s U.S. v. Texas brief, such “general statements of policy” are exempted from the APA altogether (p. 65).

From a pragmatic perspective, it would be absolutely insane to require the President to go through a cumbersome rulemaking process to react to a sudden change in diplomatic relations or our national security. Can you imagine the President responding to a surprise attack by ordering his lawyers to speedily put together a Federal Register notice?

If the challengers now seek to assert that this proclamation concerning denial-of-entry must go through the notice-and-comment process, they need to contend with—or at least acknowledge!—what took me two minutes to find: that no President has ever done this before. Certainly, past practice is not dispositive, but—under the rubric of Noel Canning and Youngstown—this gloss is rather thick.

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In Part II, I will discuss how the revised order affects the Due Process analysis. In Part III, I will assess how the changes impact the Equal Protection and Establishment clauses.