9th Circuit Cites Volume 119 Essay
Hawaii v. Trump, 2017 WL 6554184 (9th Cir. Dec. 22, 2017), concerned the latest challenge to President Donald J. Trump’s series of presidential proclamations barring immigration from various Muslim-majority countries. This appeal followed the district court’s grant of a preliminary injunction, which the panel affirmed but limited to those “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
The presidential proclamation, the third of its kind since President Trump took office, relies on the theory that the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., delegates to the President broad powers to regulate immigration to the United States. The order indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of visas for nationals of eight other countries based on those countries’ purported shortcomings in information-sharing and counter-terrorism cooperation. In its analysis of the order’s legality, the court focused on whether it complied with Congress’s delegation to the President the power to “suspend the entry of . . . any class of aliens” “for such period as he shall deem necessary” if their entry “would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f).
The court of appeals held, inter alia, that the President’s executive order was inconsistent with the text of the INA, its legislative history, and the principles of separation of powers, which compelled the conclusion that the executive order exceeded the scope of authority delegated to the President. Refuting the government’s urged interpretation, the court reasoned that the Administration’s broad reading of the statute conflicted with the law’s “finely reticulated regulatory scheme,” and that the government failed to “provide a rationale explaining why permitting entry of nationals from the . . . designated countries . . . would be detrimental to the interests of the United States,” as required. Based on its ruling on the statutory claims, the court determined that the President’s action fell within Justice Jackson’s third category from Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). The court then determined that the President lacked independent constitutional authority to issue the proclamation, finding instead that Congress has “plenary power” over immigration.
In support of its separation of powers findings, the panel cited Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 467-82 (2009), for the proposition that while the Supreme Court’s early jurisprudence “contained some ambiguities on the division of power between Congress and the Executive on immigration,” the Court’s later cases have “repeatedly recognized congressional control over immigration policies.” Cox and Rodriguez’s article examines how the allocation of regulatory power between the President and Congress has changed over time, examining the Supreme Court’s shift from viewing immigration authority as belonging to the political branches, without specifying which branch, to its determination that regulating immigration is the sole province of Congress. Aside from tracing the development and distribution of immigration authority, Cox and Rodriguez argue that modern congressional delegations have created an immigration enforcement asymmetry, as the Executive has considerable back-end authority to screen immigrants through enforcement decisions, but little control over screening at the front end, before entry into the United States.