The first few weeks of the Trump presidency have certainly been interesting. President Trump (yes, it’s a reality) has been testing the boundaries of constitutional law, and it’s unclear how everything will shake out.
First, you should know that the Constitution gives Congress broad powers to make rules for the admission of non-citizens (aliens) and to exclude those who are deemed undesirable for one reason or another. Essentially, the Supreme Court has held that the power to expel or exclude aliens is largely immune from judicial control. Furthermore, the courts have held that when Congress delegates this absolute power to the President, then his decisions are likewise generally protected from administrative or judicial review. These holdings are probably what gave our President the idea that his executive order was ‘unreviewable’.
But how did Congress delegate this authority to the President? They did so by passing a federal law. Title 8 U.S. Code § 1182, and in particular, 1182(f) says 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 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
It’s not hard to see why the President thought that he was well within his authority to issue his executive order. The problem is that while such orders are generally shielded from review, there are exceptions. In other words, just because an executive order addresses immigration, doesn’t mean that it can be blatantly unconstitutional and still stand. In this case, the Fifth Amendment of the Constitution prohibits the President from depriving people of their life, liberty, or property, without due process of law, and without providing those people notice and an opportunity to respond. The Ninth Circuit Court of Appeals held that the executive order did just that, when it denied re-entry, restricted travel, and denied asylum to some lawful permanent residents and non-immigrant visa holders without notice or an opportunity to respond.
So what’s next? Our prediction is that President Trump will issue a similar executive order, but this time it won’t be quite as broad, so as not to infringe on the Constitutional rights of lawful permanent residents and non-immigrant visa holders. Watch for the upcoming executive orders. Our bet is that we’re far from seeing the last of them.
Regardless of how this issue is resolved, it has certainly made for heated discussions and strange bedfellows. It also leaves us wondering what’s next to come from the Trump administration. We have very little doubt that it will subject to similar debate.