Academic journal article The William and Mary Bill of Rights Journal

Even When You Win, You Lose: Executive Order 13769 & the Depressing State of Procedural Due Process in the Context of Immigration

Academic journal article The William and Mary Bill of Rights Journal

Even When You Win, You Lose: Executive Order 13769 & the Depressing State of Procedural Due Process in the Context of Immigration

Article excerpt


On January 27, 2017, the new President signed an Executive Order imposing severe restrictions on immigration into the United States.1 Overnight, nationals and refugees from seven countries could no longer enter into the United States even with documentation and vetting that had previously been approved.2 The State of Washington filed a complaint in the United States District Court in the Western District of Washington seeking declaratory and injunctive relief against President Trump, the United States Department of Homeland Security and its Secretary, the Secretary of State, and the United States of America.3 On February 1, 2017, the State of Minnesota was added as a plaintiff.4 The States wanted the court to invalidate parts of the order and enjoin its enforcement.5 The States then sought a temporary restraining order (TRO) to prevent enforcement of the order while waiting for a hearing to determine if a preliminary injunction should be issued.6 The District Court granted the TRO nationwide.7 The government responded by filing an emergency motion to stay the order pending an appeal.8 This motion was quickly heard by the Ninth Circuit, which ruled against a stay and allowed the executive order to be enjoined.9 Ultimately, the Ninth Circuit denied reconsideration of the matter en banc and dismissed the case when a subsequent Executive Order was issued on March 6, 2017, that rendered the initial order moot.10

In ruling on the propriety of the TRO and the likelihood of the States' case regarding the merits, the Ninth Circuit, in its first order, held that the Executive Order might be invalidated for a lack of procedural due process.11 This Article evaluates that claim via the storied history of procedural due process in the immigration context and concludes that even if procedural due process could be applied to all aliens implicated by the original Executive Order, it would not have been the victory expected by its advocates.

I. History of Procedural Due Process in Immigration Law

When initially undertaking a study of immigration law in the United States, a primary principle that emerges is Congress's fundamental power over that area. Although it may be unclear from whence constitutionally Congress's power exactly materializes,12 the Supreme Court as early as 1889 began its analysis in Chae Chan Ping v. United States13 by saying, "[t]hat the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think [is] open to controversy."14 This case involved the exclusion of Chinese laborers who had to prove they had been in the United States before the ban against Chinese immigration had been put into effect.15 To support this broad proclamation of existing power, the Court stated,

The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination^], so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers.16

The power of exclusion was, somehow, merely incident to sovereignty and belonged clearly to the government of the United States.17 However, this power extended not only to exclusion, but also to expulsion or deportation of "all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [as] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare."18 In another case from 1893, the Court considered due process for a Chinese laborer who did not possess the proper documentation for entry.19 At the time, a residence certificate was required for entry to prove the alien had lived in the United States prior to an enactment banning Chinese immigration.20 Such a certificate could not be obtained unless an alien found a non-Chinese witness to assert he met the qualifications. …

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