July 5, 2018

The Supreme Court Got the Travel Ban Both Right and Wrong



Last week, the Supreme Court of the United States upheld the hotly-debated executive order issued by President Trump implementing the third iteration of the travel ban in a 5-4 decision, sparking outcries from the immigration advocacy community. Even though the legal decision was the right one as a matter of law, it felt deeply unsettling.

Understanding why the legal conclusion was the right one is important in thinking about how Congress can potentially use another type of presidential finding to ensure presidents cannot establish (arguably) discriminatory bans in the future.

Preserving Executive Authority Is Critical to Protecting Our National Security

At the heart of this case is whether the executive has nearly unfettered authority to ban the entry of aliens. Along with a handful of others lawyers, I opined last January that the Supreme Court would likely reaffirm the president’s broad authority found in the Immigration and Nationality Act (“INA”)(8 U.S.C. § 1182(f)) that reads:

Whenever the President finds that the entry of any aliens or 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 entry of all aliens or class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Upholding the very deferential language Congress laid out, the majority opinion confirmed the power granted the executive by this statutory regime. This is important because the statute is just one of a handful of provisions of the law that allows a president authority to make national security decisions regarding non-citizens. Since the enactment of the statute nearly 30 years ago, both Republican and Democrat presidents used this legal avenue to suspend entry of aliens—often for good reasons.

In 2000, President William J. Clinton cited the longstanding political and humanitarian crisis ongoing in Sierra Leone when he restricted entry of those who supported the Revolutionary United Front or impeded peace efforts in Sierra Leone. Later, in 2007, President George W. Bush issued Proclamation 8158 suspending entry of officials and others in Lebanon and Syria who threatened Lebanon’s sovereignty and democracy.

In both cases, the presidents used their authority to limit immigration (and other travel) to a subset of people from selected countries who were upending peace efforts or committing human rights violations. These actions also demonstrate two different reasons that a president may choose to suspend entry of certain aliens: to protect Americans and to protect our allies abroad. Preserving the ability to do so is crucial to upholding the ability and discretion of the executive to act swiftly in our nation’s interest.

Limiting the President’s Power

That’s not to say that power under this statute is without bounds—and the Court acknowledged its limits. The first clause of the statues reveals the requirement that the president provide justification to exercise authority under the statute:

Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States [. . .] [emphasis added]

The clause is without meaning if not to require a prerequisite finding. No additional statutory language indicates that the requirement is waivable or discretionary, such that reasons of confidentiality or national security might allow a president to bypass the finding requirement. In fact, the language Congress used in this statute is unmistakable and unambiguous; Congress purposefully inserted the requirement as a prerequisite check on Presidential action. Without a finding, the President cannot exercise authority pursuant to 8 U.S.C. § 1182(f).

In the travel ban case, by the third iteration of the ban, the President managed to lay out an adequate finding according to the Court, but to many observers, that finding was neither sufficient nor credible.

Looking forward, the lack of parameters surrounding the finding requirement could provide opportunity for new challenges to presidential authority under this statute, and thinking ahead about how to thoughtfully circumscribe the president’s authority while respecting the inherent vagaries that exist in national security, we should look to  analogous presidential findings in the national security context.

One oversight mechanisms used to authorize national security proposals is the covert action finding. The National Security Act requires the president make a finding to determine that the action “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States […].” The president must make a written finding prior to action, unless time does not permit, in which case there must be a record of an oral finding published within 48 hours. The 1991 amendments specify that the President must keep congressional intelligence committees informed along the way.

The oversight mechanism for covert action came about in three legislative stages, beginning with the passage of the Hughes-Ryan Act of 1974, which required the President to determine that any proposed covert action “is important to the national security of the United States” and mandated reporting to various congressional committees. Next, the Intelligence Oversight Act of 1980 established the relatively new intelligence committees as the key sources of congressional oversight in this area. Finally, there was the Intelligence Authorization Act, the main legislative response to the Iran-Contra Affair, which defined “covert action” and memorialized in statute many of the practices and understandings that had grown up around the oversight of covert action since 1974.

Although it admits some variety as a function of presidential preference, the “systematic, institutionalized process” underpinning covert action is designed to evaluate “effectiveness, risk, and policy adherence.” The rationale and framework for this type of finding in the national security context illustrates the importance of affording sufficient justification for executive policy, while protecting privileged information. In the context of authorizing covert action, which nearly always entails highly classified information, the finding process nonetheless requires the president to demonstrate that the action is essential to national security, is legal, is consistent with foreign policy and American values—and will eventually be made public to the evaluating eyes of posterity.

Often, the effectiveness of a presidential finding in the context of covert action turns on the specificity of the relevant justification provided. The findings are meant to bolster a serious consideration of the costs and benefits of pursuing controversial courses of action, especially if not all information is available to the public. The texts of presidential findings for covert actions since the addition of the 1991 amendments  remain classified, but information was leaked to the public indicating a level of specificity reflective of the statutory requirements. For example, at the behest of Congress asking for more specificity, President Carter eventually separated his findings for covert action into two categories: generic findings on “transnational issues,” or tailored findings for an individual country or issue.

In the context of covert action executive findings designed to implement the most highly classified, secret national security missions, it is to be expected that some of the written findings are necessarily short and broad to give the Central Intelligence Agency (“CIA”) discretion to interpret the president’s directives, particularly when the president does not have the expertise to specify tactical maneuvers. However, a certain level of specificity can be provided without infringing on protected national security interests.

Interpreting a finding pursuant to 8 U.S.C. § 1182(f) presents a meaningful opportunity to provide the public information necessary to enhance the effectiveness accountability, and attentiveness to civil liberties. For example, a robust finding may include factors like:

  • Accompanying sanctions in a region or against a group of individuals;
  • Specific allegations of crimes or violations against international norms against specific individuals or a group of individuals;
  • Specific allegations of humanitarian violations;
  • Examples of politically motivated violence, like assassinations or overthrow attempts;
  • International recognition of unrest in the region;
  • International cooperation or involvement; or
  • Economic findings relating to action and inaction.

The covert action finding requirement illustrates the capacity of a president to make a finding even in the national security context, the importance of demonstrating a review of the proposed action and its consequences, and provides a framework for what a court can look for when considering potential parameters of an adequate finding pursuant to 8 U.S.C. § 1182(f), even if the finding cites national security implications as reasoning for truncated analysis.

The Court’s holding is disquieting because the legality of the decision is so far from what many feel should be. Consistent disregard of the norms and principles that undergird liberal government is as corrosive to our political system—or perhaps more so since they are unchallengeable—as are flagrant unconstitutional actions.

In two dissents, the Court’s minority lambasted the administration for failing to issue consular guidance on granting waivers for undue hardship, national interest, and national security; and for the suspiciously low number of granted waivers, despite evidence of numerous credible waiver applicants. In a surprise to no one, Justices Sotomayor and Ginsburg authored the most memorable dissent, asserting that the administration’s repackaging did little to veil the anti-Muslim discrimination that openly runs afoul of religious neutrality. The Justices noted, as did many advocates, that the President never denounced his statements, and even underscored that it was ban of Muslims at times.

Each iteration of the travel ban, and the President’s ongoing commentary, has unquestionably undermined the standards of respect, humanity, and tolerance that are the bedrock of and the very motivation for our constitutional traditions.

Our respite will not come from the judiciary, but it can from Congress in a thoughtful way that preserves executive authority and prevents future actions with arguably deceptive rationale. It is once again in the hands of our elected leaders to take charge if we want this standard changed.