Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship4-23-2018The Travel Ban and Presidential PowerPeter MarguliesRoger Williams University School of Law, pmargulies@rwu.eduFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Constitutional Law Commons, Immigration Law Commons, and the President/Executive Department CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, The Travel Ban and Presidential Power, Lawfare (Apr 23, 2018, 8:00 AM), https://www.lawfareblog.com/travel-ban-and-presidential-powerTRAVEL BANThe Travel Ban and Presidential PowerBy Peter Margulies  Monday, April 23, 2018, 8:00 AMWith the Supreme Court scheduled to hear oral argument on April 25 in Trump v. Hawaii, now is a good time to consider the government’s relianceon the president’s Article II power as a legal justi½cation for the third iteration of President Trump’s travel ban.In both its initial brief and its reply to Hawaii’s arguments, the government invokes Article II and a statutory provision: 8 USC § 1182(f). Assertingthat Article II provides “broad authority” for President Trump’s action, the government cites the Cold War Supreme court decision, United States exrel. Knauff v. Shaughnessy (1950) (see Josh Blackman’s extended analysis). But Knauff cannot bear the weight the government places on it—asimmigration law scholars explain in an amicus brief ½led in Trump v Hawaii on the history of the Immigration and Nationality Act, in which I servedas co-counsel with Shoba Wadhia of Penn State and WilmerHale’s Alan Schoenfeld, Ben Gifford, and Francisco Unger. Justice Sherman Minton’sopinion was hardly a model of clarity; it drew dissents from justices Felix Frankfurter and Robert Jackson. Indeed, the current court has viewedKnauff as establishing Congress’s power over immigration, not the president’s.Ellen Knauff was a refugee of the second world war from Czechoslovakia who, according to the Supreme Court, served “ef½ciently and honorably”with the Royal Air Force and then performed well-regarded work for the U.S. War Department in Germany. In 1948, with the approval of the U.S.general in command in Frankfurt, she married a U.S. veteran. As the spouse of a U.S. citizen, Knauff was eligible for an immigrant visa; Congress hadenacted the War Brides Act to facilitate the entry of foreign spouses of U.S. service members. Shortly thereafter, Knauff sought to enter the U.S. tobecome a naturalized U.S. citizen.But the U.S. government had other plans, based on concerns—eventually proven to be unfounded—that Knauff was a spy for the Communist regimein Prague. It denied Knauff entry to the U.S., refused her request for a hearing, and refused to provide evidence of its charges to anyone, includingthe Supreme Court. As legal authority, the government relied not on Article II, but on a predecessor to the modern 8 USC § 1185(a)(1) andaccompanying regulations, which authorized the president to deny entry to a foreign national “prejudicial to the interests of the United States.” As recounted in the amicus brief on the history of the INA, the 1941 provision on which the government relied to exclude Knauff was narrow inscope. After members of Congress complained that the wording of the bill proposed by the Roosevelt administration seemed broad, executivebranch of½cials and their allies in Congress explained that President Roosevelt sought only narrowly tailored authority to exclude spies, saboteurs,and agents of hostile foreign powers who could pose a threat in the months preceding America’s entry into World War II. Thus molli½ed, Congresspassed the legislation; Roosevelt-era regulations tracked these limits.In Knauff, Justice Minton found that the decision regarding the petitioner fell within the discretion that Congress had duly delegated to theexecutive branch regarding spies and saboteurs. The court observed that Congress’s delegation of power was in no way “inappropriate” and thatCongress had “lawfully placed” the decision to allow entry with the president. Minton mused that in delegating this authority, Congress had actednot only pursuant to its own Article I authority, but was also “implementing an inherent executive power” (Justice Neil Gorsuch echoed this thoughtin his recent concurrence in Sessions v. Dimaya, writing that in foreign relations the president “enjoys considerable constitutional authority,” whilefurther noting that the president’s authority did not save the removal provision at issue in that case from unconstitutional vagueness).However, Minton diligently conjoined the executive’s role with the power of Congress.Describing the ambit of Congress’s authority, Minton asserted in Knauff that “Congress may in broad terms authorize the executive” to makedecisions about entry “in the best interests of the country.” In support of this proposition, Minton cited another congressional delegation case,Lichter v. United States, which upheld a statute authorizing the executive to recover “excessive pro½ts” from wartime defense contractors. In thestatute at issue in Lichter, Congress did not de½ne what it meant by “excessive pro½ts.” Minton quoted a passage in Lichter that af½rmed the legalityof delegations to the executive branch to implement “[s]tandards prescribed by Congress.” In other words, Minton’s reference to “inherent executivepower” was a small island in a sea of allusions to congressional authority.Even more tellingly for purposes of the challenge to the travel ban, the passage from Lichter that Minton quoted in Knauff also indicated that“statutory context” constrains the scope of Congress’s delegation. Under this reasoning, the statutory authority to exclude suspected spies andsaboteurs invoked in Knauff might well counsel deference to executive branch determinations, but a different statutory context might produce a lessdeferential result.Even in Knauff, divergent views of the statutory context led to pointed dissents from two of the Supreme Court’s greatest justices: Frankfurter—among the court’s greatest champions of judicial restraint—and Jackson, soon to author the canonical Youngstown v. Ohio concurrence that hassince guided separation-of-powers jurisprudence in national security cases. For both Frankfurter and Jackson, the War Brides Act was a material partof the statutory landscape, counseling limits on uncabined executive authority. Congress enacted the War Brides Act to temper the national-originquotas then in effect, which would have greatly hindered U.S. veterans seeking to unite their families in the United States.Frankfurter asserted that the War Brides Act weakened the case for deferring to the “mere say-so” of an executive branch of½cial, especially wheneven a minimal hearing would allow the U.S. citizen spouse to soundly rebut the government’s choices. Wielding a meticulous approach to statutoryinterpretation that had long been one of the justice’s hallmarks, Frankfurter cited the War Brides Act as demonstrating Congress’s respect for the“dominant regard which American society places upon the family.” Allowing the fruits of that regard to be “arbitrarily … taken away” by government½at would read a remedial statute in a carelessly “decimating spirit.” According to Frankfurter, courts should avoid such a mechanical reading unless“the letter of Congress is inexorable.” Jackson, with the support ofd Frankfurter and the great civil libertarian Hugo Black, also argued against reading the statute to permit the “abruptand brutal exclusion of the wife of an American citizen without a hearing.” Rejecting such a stark reading, Jackson would have required “moreexplicit language” from Congress to authorize the “break up [of] the family of an American citizen … without notice of charges … [or] evidence ofguilt.”Subsequent developments vindicated Frankfurter’s and Jackson’s positions. After members of Congress proposed private bills that would haveremedied Knauff’s predicament on a “one-off” basis, the attorney general agreed to provide Knauff with the administrative hearing she and herhusband sought. A Justice Department hearing of½cer found that the government’s charges against Knauff were the product of rumor, innuendo,and mistake. Knauff was allowed to become a lawful permanent resident of the United States. The Supreme Court’s subsequent treatment of Knauff has suggested that a narrow interpretation of that decision is most ½tting. In the last fortyyears, citations to Knauff in majority opinions or concurrences have been sparing. The only recent example is Justice Anthony Kennedy’sconcurrence in Kerry v. Din, which cites Knauff in support of Congress’s “plenary power” over entry into the United States. The court has neverelaborated on the view of executive power in Minton’s opinion.As our amicus brief demonstrates, the “context” of the INA today demonstrates even more ½rmly than the War Brides Act in Knauff that deference tothe executive branch must have limits. That context includes the 1965 immigration amendments’ elevation of family unity to the “foremost”priority of immigration law. It also includes Congress’s 1965 abolition of national-origin quotas and enactment of 8 USC § 1152(a)(1)(A), which barsdiscrimination in the issuance of immigrant visas. As our brief describes, one factor that drove Congress to abolish national-origin quotas was theconstant need for what President Dwight Eisenhower had called an “avalanche” of private bills tempering the quota system’s harshness. Havingresorted to that tactic to assist Ellen Knauff and thousands of others, Congress understood well the wastefulness of this piecemeal approach toimmigration legislation and the need for a more streamlined way forward. Relegating those subject to Trump’s travel ban to the episodic arcana ofprivate bills would have struck Congress in 1965 as exactly the sort of situation that it wished to remedy.The “context” of Trump’s travel ban also includes the past practice of U.S. presidents, who limited efforts to exclude foreign nationals to identi½ableindividuals accused of speci½c conduct—such as Knauff’s alleged spying or, more recently, human rights violations in Kosovo or Burma—or toresponses to exigent national security matters, such as the Iran hostage crisis or the aftermath of the Cuban Mariel boatlift. Even the broadest ofsuch orders contained exemptions for the close relatives of U.S. citizens or legal permanent residents far in excess of the most recent travel ban’smeager provision for waivers. Viewed against that backdrop, the ban rests on claims of uncabined executive authority that do not match Congress’splan. Finding such boundless authority in the modern Immigration and Nationality Act would require a clearer statement than the language thatCongress has provided.In sum, the government’s claims of Article II authority do not survive an encounter with case law or with past practice. Even assuming that Congressrecognized in the president some ability to exclude particular individuals such as Ellen Knauff, precedent does not support a sweeping power tosummarily exclude entire countries’ immigrants. The logic of Knauff, the backdrop of the INA, and past practice cast decisive doubt on thosejusti½cations for the travel ban.Topics: Travel Ban, ImmigrationPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National SecurityLaw and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York:NYU Press, 2010).

The Travel Ban and Presidential Power

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The Travel Ban and Presidential Power

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