Trump v. Hawaii and the Broad Power Congress Gave Presidents in Section 212(f)

Here is a test of your constitutional honesty. Suppose the Supreme Court had just upheld a power in the presidency that you wish the presidency did not have. Would you still tell the truth about where that power came from? Because the most useful thing about the travel-ban case is that it forces the question on everybody. Those who cheered the result must ask whether they will cheer the same power in the next president's hands. Those who despised it must admit that the power was not invented by the man who used it.

Trump v. Hawaii, decided on June 26, 2018, is a case about a statute, a proclamation and a promise the Court made to presidents of every party. Read it for what it holds, and you will see it is narrower than the headlines, broader than the critics allow, and a lesson in who really writes the law.

The Text

The power at the center of the case lives in a single sentence of the Immigration and Nationality Act, Section 212(f), codified at 8 U.S.C. 1182(f). It reads:

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.

Take the sentence apart.

It begins with a condition: "whenever the President finds." The trigger is a finding by the president, not a finding by a court or an agency.

The finding is that entry "would be detrimental to the interests of the United States." That is a standard of the national interest, a standard with wide edges.

Then the grant. The president "may by proclamation" suspend entry, "for such period as he shall deem necessary," of "all aliens or any class of aliens," or "impose on the entry of aliens any restrictions he may deem to be appropriate." The grant is broad in its object, in its duration and in its method.

This is not a clause from the Constitution. It is a statute that Congress wrote, in the Immigration and Nationality Act of 1952, and has left on the books for decades. Congress chose that language. A legislature that wants a narrower power knows how to write one. This one wrote a wide one, and it has been in place through administrations of both parties.

The Proclamation

President Trump took office in January 2017 and issued a series of orders restricting entry. The first, Executive Order 13769 of January 27, 2017, was blocked in court. A second, Executive Order 13780 of March 6, 2017, drew more litigation. Then, after a worldwide review of other countries' information-sharing and identity-management practices by the Department of Homeland Security and consultation with other agencies, the president issued Proclamation 9645 on September 24, 2017.

The proclamation suspended or restricted entry of nationals of several countries that the review found deficient in the information they provided to the United States for vetting. The countries on the final list were Chad, Iran, Libya, North Korea, Syria, Yemen and Somalia, along with certain government officials from Venezuela. The restrictions varied by country. Some were nearly complete suspensions of immigrant and certain nonimmigrant entry, others were narrower. The proclamation included a waiver process for individual cases of undue hardship and set up a periodic review of the list. Chad was later removed from the list after it improved its practices.

That detail, the process, is part of why the challengers lost. A proclamation that rests on a stated review, with country-by-country restrictions, waivers and periodic reassessment, looks different from an arbitrary order.

The Challengers' Case

The state of Hawaii, individuals and a mosque brought suit. They made two main arguments.

The first was statutory. They said that Section 212(f) did not authorize the proclamation, and that a different section of the immigration law, which bars discrimination on the basis of nationality in the issuance of immigrant visas, prohibited the nationality-based restrictions the proclamation imposed.

The second was constitutional. They said the proclamation violated the Establishment Clause of the First Amendment, because it was motivated by hostility to Muslims. They pointed to statements the president had made as a candidate and in office about Muslims and about a "Muslim ban."

Both are serious arguments. A court cannot dismiss a claim of religious animus because the government has offered a neutral explanation. The question was what weight to give the evidence.

The Majority

The Court ruled for the president by a vote of five to four. Chief Justice John Roberts wrote the opinion, joined by Justices Kennedy, Thomas, Alito and Gorsuch.

On the statute. The Court held that Section 212(f) gave the president the authority he used. It said the statute shows deference to the president in every clause, that it gives the president ample discretion to decide when to restrict entry and how, and that it is a delegation by Congress against a long history of presidents invoking it. The Court said that the statute requires only that the president find that entry would be detrimental, and that the proclamation made that finding, backed by a review process. It also held that the nondiscrimination provision for immigrant visas governs the issuance of visas and does not limit the president's power to suspend entry. A person may be eligible for a visa and still be barred from entering.

On the Establishment Clause. The Court considered the president's statements and still upheld the proclamation. It applied a deferential standard drawn from earlier cases about the political branches' power over entry, such as Kleindienst v. Mandel (1972), under which a court asks only whether the policy has a facially legitimate and bona fide reason. Even assuming that it could look behind the proclamation, the Court applied the test of rational basis, and asked whether the policy was plausibly related to a legitimate government interest. It found that it was: the interest in preventing the entry of people whom the government could not adequately vet, and in encouraging foreign governments to improve their practices. It also noted that the proclamation was neutral on its face and addressed to the security concerns it described, and that the great majority of the world's Muslims lived in countries not covered.

The Dissent, and Korematsu

Justice Sonia Sotomayor, joined by Justice Ginsburg, wrote the main dissent. She argued that a reasonable observer, looking at the whole record, including the president's statements, would conclude that the proclamation was motivated by anti-Muslim animus, and that the national-security rationale was a pretext. She said the Court had abandoned its duty to examine the evidence. Justice Breyer, joined by Justice Kagan, wrote separately on the narrower point of whether the waiver process was really operating as the government claimed.

The most famous exchange concerns Korematsu v. United States (1944), the decision that upheld the internment of Japanese Americans during the Second World War. Sotomayor compared the majority's deference to the deference the Court gave in Korematsu. The Chief Justice's reply is the line most worth remembering. He wrote that the dissent's reliance on Korematsu was misplaced, since the case was about the forcible removal of U.S. citizens, and then he went further. Korematsu, he wrote, "was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.'"

That is a notable statement. It put the Court on record against its own worst decision of the century, and it did so in a case about entry, not internment. A conservative who takes constitutional limits seriously should welcome it, since it shows that deference to the executive on admission is not deference on everything.

The Steelman and the Answer

The strongest objection to the ruling is that it defers too much. A president who says one thing in public and does another in a proclamation can get away with it, because a court will not look hard at motive. The power is too large, and it rests on a statute so vague that a determined president can use it to do almost anything about immigration.

This is a fair worry, and one that conservatives who care about limited government should take seriously. Here is the answer in four numbered points.

One. The breadth of the power comes from Congress, not from the president and not from the Court. The Court's job was to read the statute as written. If a statute gives the president power "he may deem to be appropriate," a court that reads it as less than that is rewriting it. The remedy for a delegation that is too wide is for the legislature to narrow it, and Congress can do that any time it wants.

Two. The power has a long history on both sides of the aisle. Presidents from both parties have used Section 212(f) to suspend entry of various classes of people, and the opinion cites many of those uses. A rule that applies to one president's policy and not to another's is not a rule, so the Court was right to treat the statute as it treats every president's use.

Three. There is a structural reason for the deference. Decisions about whom to admit involve foreign affairs, intelligence assessments and national security judgments, matters on which the political branches have constitutional authority and the courts have no special competence. That reasoning goes back to the Chinese Exclusion Case, which is discussed in The Chinese Exclusion Case and How the Court Found a Sovereign Power to Exclude.

Four. The check on abuse is political, and it is real. The president must answer to voters, Congress holds the power of the purse and the power to legislate, and the proclamation here was reviewed periodically and revised. If Congress dislikes the result, it can change the law, and the president can veto, and the voters can punish whoever they like.

The Power Belongs to the Office

The most important lesson is a simple one. The Court did not hold that this president had a special power. It held that the president has the power that Congress gave. It will be exercised by every future occupant of the office, whether you like him or not.

Think about the next president, whoever she or he may be, of whichever party. The same sentence of the Immigration and Nationality Act will be in the same book. The same reasoning will apply. A conservative who loves the result in this case should ask whether he is comfortable with the same power in the hands of a president who holds opposite views. If the answer is no, the honest response is to call for Congress to write the limits into the statute, not to wish the Court had read it differently.

That is a principle, and it is the one conservatives apply elsewhere. It is the same reasoning behind the rule that Congress, not an executive, owns the power to change the law, which INS v. Chadha Began as One Man's Deportation and Ended the Legislative Veto shows from the other direction. When an agency stretches an old statute to cover a new power, we say Congress must speak clearly. We should say the same when the stretching is done by a president we like. For more on the division of responsibility, see Federalist 70 Read Closely, Hamilton's Case for Energy in One Executive.

What the Case Does Not Say

A few cautions. The decision does not say the proclamation was wise. It says only that it was lawful. It does not say a president can ignore the Constitution's guarantees to people inside the country, or that religious animus is acceptable. It reaffirmed that the Establishment Clause applies. And it does not resolve the many other disputes about how entry, visas and removal work.

It also leaves open a harder question that the judges avoided: how a court should treat a policy that has both a plausible national-security justification and a record of hostile statements. The Court said it would apply the highly deferential standard in this setting. A different setting, such as a policy aimed at people already living here, could draw a different standard.

The case in brief

1. Section 212(f) of the Immigration and Nationality Act lets the president, upon finding that entry would be detrimental to the national interest, suspend the entry of any class of aliens for as long as he deems necessary.
2. Trump v. Hawaii (2018) upheld Proclamation 9645, five to four, holding that the statute authorized it and that the proclamation survived rational-basis review of the Establishment Clause claim.
3. Justice Sotomayor's dissent argued that the president's statements showed religious animus, and Chief Justice Roberts's majority repudiated Korematsu as "gravely wrong the day it was decided."
4. The breadth of the power comes from Congress, and Congress can narrow it with a statute.
5. The power belongs to the office, not the man, so it is available to every future president, and conservatives should judge it by that standard.

What you can do: read Section 212(f) at 8 U.S.C. 1182(f) in full, then write to your member of Congress and say whether the delegation should stay as it is or be narrowed.