Academic journal article Washington and Lee Law Review

National Security, Immigration and the Muslim Bans

Academic journal article Washington and Lee Law Review

National Security, Immigration and the Muslim Bans

Article excerpt

Table of Contents

I. Introduction ................................................................... 1475

II. Muslim Bans .................................................................. 1483

A. Muslim Ban 1.0 ........................................................ 1483

B. Muslim Ban 2.0 ........................................................ 1485

C. Muslim Ban 3.0 ........................................................ 1487

III. Legal Challenges to the Bans ........................................ 1488

IV. Outside the Courtroom .................................................. 1500

V. Conclusion ..................................................................... 1506

I. Introduction

The use of national security language to create and defend immigration law and policy is historic.1 The Immigration and Nationality Act (INA), which Congress enacted in 1952, contains sections to exclude or deport noncitizens for "security and related grounds."2 A sublayer of this section is aimed at noncitizens who engage in "any other criminal activity which endangers the public safety or national security . . . ."3 The Executive Branch has published regulations and policies that use national security language in a similar manner. Federal courts have further upheld immigration laws or deferred to Congress or agencies in the name of national security.4 One tool that has enabled the cohabitation of national security and immigration is the "plenary power doctrine," which originates from a case known as Chae Chan Ping v. United States5 (alternately, the Chinese Exclusion Case) and refers to the complete power "political branches" have over immigration.6 As administrative and immigration law scholar Michael Kagan has described, "[h]aving chosen an extra-constitutional foundation for immigration law, the Court quickly came to the conclusion that the judiciary had little or no role in reviewing decisions prohibiting foreigners from entering the country . . . ."7 The practical impact is that legal questions noncitizens raise regarding entry or rights in the United States are limited. Indeed, when the plenary power doctrine is invoked, the courts will not intervene.8

The outer limits of the plenary power doctrine have also been tested in the courts and recently in connection with the Muslim bans the Executive Branch has issued against noncitizens based upon their nationality and religion.9 While it is simple to identify the use of national security language by Congress, the executive branch and courts, measuring the national security value of a particular immigration law or policy is a greater challenge. Moreover, when governments are permitted to create immigration policies under a national security justification that is never tested, or, even worse, found to be flawed, the human consequences are grave. For example, the former Immigration and Naturalization Service published a regulation known as "special registration" on the heels of an announcement by then-Attorney General John Ashcroftto track and interrogate certain individuals through a "National Security Entry and Exit Registration System" ("NSEERS").10 With the NSEERS program, nearly 14,000 men from primarily Muslim countries were placed in removal (deportation) proceedings after coming forward to register with the government.11 Former government officials responsible for administering the NSEERS program and national security experts concluded that NSEERS was a huge waste of resources and without national security benefit.12 Nonetheless, the fallout of the program fell on the men who came forward and were later detained and deported, as well as on their families.13 The use of national security to create or defend immigration law or policy also raises a number of constitutional concerns, some of which the courts have addressed in connection with the plenary power doctrine and, more recently, the appellate courts have addressed in reviewing the Muslim bans in connection with the Establishment Clause of the First Amendment. …

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