Today's Article
Trump's presidential
power to ban
individuals from other
countries may remain
uncomfortably large
and ill-defined.
The American Spark
Trump May Still Hold An Ill-Defined Authority On Travel Bans

By Cliff Montgomery - Feb. 15th, 2017

It appears that federal judges may have killed much of Trump’s most infamous executive order, which
suspended U.S. entry for citizens of various Muslim-majority countries.
But his presidential powers in this
matter may remain uncomfortably large and ill-defined, according to a recent release from the Congressional
Research Service (CRS)
.

The issue hinges on a law called the Immigration and Nationality Act, according to CRS.

The research service stated that a section of the Act contains this little gem:

    ‘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  non-immigrants, or impose  on  the entry of aliens any restrictions he may deem to be
    appropriate.’

“The Immigration and Nationality Act, or INA, was created in 1952,” according to the U.S. Citizenship and
Immigration Service (USCIS).

“Before the INA, a variety of statutes governed immigration law but were not organized in one location,”
continues USCIS.

Below. the
American Spark quotes the entire summary of the CRS study:


The Immigration and Nationality Act (INA) provides that individual aliens outside the United States are
‘inadmissible’—or barred from admission to the country—on health, criminal, security, and other grounds set
forth in the INA. However, the INA also grants the Executive several broader authorities that could be used to
exclude certain individual aliens or classes of aliens for reasons that are not specifically prescribed in the INA.

“Section 212(f) of the INA is arguably the broadest and best known of these authorities. It provides, in relevant
part, that:

    ‘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  non-immigrants, or impose  on  the entry of aliens any restrictions he may deem to be
    appropriate.’

“Over the years, Presidents have relied upon Section 212(f) to suspend or otherwise restrict the entry of
individual aliens and classes of aliens, often (although not always) in conjunction with the imposition of
financial sanctions upon these aliens.

“Among those so excluded have been aliens whose actions ‘threaten the peace, security, or stability of Libya’;
officials of the North Korean government; and aliens responsible for ‘serious human rights violations.’

“Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the President’s
exercise of his authority to exclude aliens under this provision.

“The central statutory constraint imposed on Section 212(f)’s exclusionary power is that the President must
have found that the entry of any alien or class of aliens would be ‘detrimental to the interests of the United
States.’ [But] The statute does not address (1) what factors should be considered in determining whether
aliens’ entry is ‘detrimental’ to U.S. interests; (2) when and how proclamations suspending or restricting entry
should be issued; (3) what factors are to be considered in determining whether particular restrictions are
‘appropriate’; or (4) how long any restrictions should last.

“The limited case law addressing exercises of presidential authority under Section 212(f) also supports the
view that this provision confers broad authority to bar or impose conditions upon the entry of aliens.

“Key among these cases is the Supreme Court’s 1993 decision in Sale v. Haitian Centers Council, Inc., which
held that the U.S. practice of interdicting persons fleeing Haiti outside U.S. territorial waters and returning
them to their home country without allowing them to raise claims for asylum or withholding of removal did not
violate the INA or the United Nations Convention Relating to the Status of Refugees.

“The U.S. practice had been established by Executive Order 12807, which was issued, in part, under the
authority of Section 212(f) and ‘suspend[ed] the entry of aliens coming by sea to the United States without
necessary documentation.’ However, depending on their scope, future executive actions under Section 212(f)
could potentially be seen to raise legal issues that have not been prompted by the Executive’s prior exercises
of this authority.

“Beyond Section 212(f), other provisions of the INA can also be seen to authorize the Executive to restrict
aliens’ entry to the United States. Most notably, Section 214(a)(1) prescribes that the ‘admission of any alien
to the United States as a non-immigrant shall be for such time and under
such conditions as [the Executive]
may by regulations prescribe.’

“Section 215(a)(1) similarly provides that ‘it shall be unlawful for any alien’ to enter or depart the United States
‘except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions
as the President may prescribe.’

“For example, President Carter cited Section 215(a)—rather than Section 212(f)—when authorizing the
revocation of immigrant and non-immigrant visas issued to Iranian citizens during the Iran Hostage Crisis.”



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