February 16, 2017

Individual Liberty and the Power to Exclude


Mark S. Weiner >

In a recent Niskanen Center post, Matthew Fay provided some stimulating “preliminary thoughts” about libertarian approaches to foreign policy. In particular, and perhaps ironically for a libertarian, he advocates for a libertarian foreign relations in which skepticism of state power and support for individual liberty would be closely linked with robust international political institutions.

In the spirit of such unfashionable theorizing, I’d like to offer some preliminary thoughts of my own about an aspect of American foreign affairs implicated by the President’s executive order about immigration and refugees. In my view, the President’s executive order highlights a larger jurisprudential tension with which all inheritors of the liberal tradition should be concerned. Call it the conflict between the foreign affairs power and individual liberty. This generation may be asked to resolve that tension, and the recent decision of the Ninth Circuit in Washington v. Trump may point our way forward by pointing us back to views about free speech and executive action articulated in the early 1970s. As Justice William O. Douglas wrote in dissent in Kleindienst v. Mandel (1972), “thought control is not within the competence of any branch of government.”

In practice, the constitution’s judicial force has tended to falter at the shores of American foreign policy. Faced with a challenge to some aspect of the president’s conduct of international relations, courts have often stood to the side. As Kristie de Peña noted in an earlier Niskanen Center post, the power in particular to exclude aliens—an essential feature of the nation’s relation to the world beyond its borders—has long been held to be an incident of national sovereignty subject only to political constraint. The foundations of this view were articulated over a century ago in Chae Chan Ping v. U.S. (1889); deepened by Justice Sutherland in U.S. v. Curtiss-Wright Export Corporation (1936); and given post-war expression in cases like Knauff v. Shaughnessy (1950), which emphasizes that “the power of exclusion of aliens” not only can be delegated to the President but also is “inherent in the executive department” (emphasis added).

This is the tradition on which one Department of Justice attorney implicitly relied when she gamely argued in favor of the executive order before federal district court Judge James L. Robart in Washington v. Trump. The court, she asserted, essentially should grant the President a realm of unfettered discretion to exclude aliens on any basis whatsoever: “because this is question of foreign affairs … the court doesn’t have the authority to look behind [the president’s] determinations” (see 37:55-40:05 of the video record).

There are many sound, practical reasons for this approach, as one would expect given its pedigree. Certainly most reasonable people across the political spectrum, including judges, shudder at the idea that courts could serve as forums to debate matters of foreign affairs. Foreign affairs are a subject well beyond the institutional competence of the judiciary, and if courts were regularly to entertain challenges to foreign policy decisions they would undercut the unified voice with which the nation needs to speak in the international arena.

Yet in the case of the power to exclude, this view is particularly inapt, and thinking about why might help us think more deeply about what a libertarian foreign policy might mean. It also could help close the gap between foreign affairs power and individual liberty. The reasons why extreme deference to the executive’s power to exclude is inappropriate lie in the universal aspirations of the Anglo-American liberal tradition. That tradition conceives of individual rights as natural facts of the world that governments must recognize rather than as gifts of generosity from the state. As a theoretical matter, individual rights provide the very reason for government—the state grows organically out of our commitment to liberty.

Now, were it to be imposed domestically, government classification of the kind at issue in the President’s order would be repugnant to the constitution from any reasonable jurisprudential position. The notion that the order is “neutral” doesn’t pass the laugh test. By your exceptions shall ye be known—that’s the upshot of Larson v. Valente (1982). Or to quote Justice Kennedy, writing in Church of the Lukumi Babalu Aye v. Hialeah (1993), the executive order was “gerrymandered with care” to single out Muslims—which, after all, was a central promise of Donald Trump’s presidential campaign. Issued within our borders, the order would quickly fall under a test of strict scrutiny. Indeed, it likely would be viewed as so obviously punitive in nature, so driven by simple animus, that it might fail even a rational basis standard of review.

As the champions of individual liberty against government power, libertarians of all people ought to be repelled by this fact. If you think that government action is wrong when the state imposes burdens on the basis of religion without a very powerful justification, then the executive order should leave you profoundly unsettled. In states truly grounded in liberal philosophical principles, oppressive government action is wrong no matter where it occurs.

But there is a less obvious reason that libertarians should view the executive order as offensive to the constitution, and it’s suggested by the legal theory articulated by Judge Francis Dooling, Jr., joined by Judge Wilfred Feinberg, in Mandel v. Mitchell, 325 F. Supp. 620 (E.D.N.Y. 1971). The court’s opinion there applied the Free Speech Clause to limit executive power to exclude aliens on ideological grounds. And in doing so it essentially imagines strongly limiting the force of cases like Knauff v. Shaughnessy (1950) in the First Amendment context. It’s worth a read—if for no other reason than because the Ninth Circuit prominently rejected the Department of Justice’s extreme interpretation of Kleindienst v. Mandel (which reversed Mandel v. Mitchell on appeal) as providing an absolute bar on judicial review of the immigration order.  

What I find especially interesting about Judge Dooling’s opinion is that it grounds constitutional limits on the power to exclude not so much in the rights of affected aliens, but rather in the public interest of American citizens in the robust exchange of ideas. The First Amendment, the court writes, “reflects the total retention by the people as sovereign to themselves of the right to free and open debate of political questions.” It seems to me that this reasoning applies equally in the free exercise and establishment context, and that it gives jurisprudential form to our political intuitions about why the order is so abhorrent.

By this I mean that the executive order doesn’t harm aliens alone—though that would certainly be enough to render it the abomination that it is. There is every reason to object in the strongest possible terms when an alien holder of a legitimate visa, much less a green card, is refused entry into the United States essentially because of his or her religion.

But as a legal matter, we all are diminished by the executive order—we as individual citizens and we as a nation. The order abrogates our right to freely encounter people of different faiths, and to live in the type of intellectually robust society created when religion provides no basis for invidious use of government power. The reason the order has engendered such outrage and sorrow is because it strikes at the heart of what it means to be an American—it has violated a conception of the public interest articulated in decisions such as Red Lion Broadcasting v. FCC (1969). This understanding of national identity is as much at stake in the order as harm to others.

As I have argued in a recent book, individual liberty and the public interest—and the government institutions that uphold that interest—are interdependent. The president’s executive order underscores the fact that individual liberty and the public interest are interdependent at a theoretical level, just as in Fay’s view individual liberty and limits on state power are supported institutionally through our commitment to the liberal international order.

On one reading, Justice Anthony Kennedy in  Nguyen v. INS (2001) signaled his potential willingness to work through the tension between individual liberty and the foreign affairs power in the naturalization context. In that case, he wrote, the Court “need not decide whether some lesser degree of scrutiny pertains because the statute [at issue] implicates Congress’ immigration and naturalization power,” because the sex-based discrimination at issue met the high standard of U.S. v. Virginia (1996)—which is to say that there might be a future case in which such a decision would be necessary. Perhaps the president’s executive order provides just such a case. And the Ninth Circuit’s loud rejection of the government’s interpretation of Kleindiest v. Mandel points us toward one of the legal theories with which to ground the challenge.

At the very least, no matter how the courts decide its fate, the executive order provides an opportunity for libertarians to clarify their thinking about the reach of the constitution and the ideals to which it gives voice. It’s an opportunity to put ideals of individual liberty front and center—in every context, and on the basis of a deep conception of the public.

Mark S. Weiner is the award-winning author of the Rule of the Clan: What an Ancient Form of Social Organization Reveals about the Future of Individual Freedom and Americans without Law: The Racial Boundaries of Citizenship. He is a Professor of Law at Rutgers University, Newark.