Presidential Power and American Fear: A History of Ina § 212(f)

By Ordorica, Dan | Boston University Law Review, September 2019 | Go to article overview

Presidential Power and American Fear: A History of Ina § 212(f)


Ordorica, Dan, Boston University Law Review


Introduction

Shortly after taking office, President Trump issued Executive Order 13,769, banning entry to the United States for persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1 This executive order, soon known as the "travel ban," went into effect immediately on January 27, 2017, leaving travelers from the affected nations in limbo and spawning a wave of protests at airports and litigation in the courts.2 Afterwards, the travel ban was halted by restraining orders issued by federal district courts,3 rescinded and replaced,4 elapsed, and reissued by the President.5 Two circuit courts were called upon to consider the statutory and constitutional questions raised by the travel ban,6 and in preliminary proceedings the Supreme Court of the United States had occasion to weigh in.7 The third version of the travel ban remained operational while the Supreme Court considered the matter.8 The Court heard oral arguments on April 25, 2018, and issued its decision upholding the ban on June 26, 2018.9

Despite all of the litigation surrounding the travel ban and its subsequent iterations, the briefing involved-from the government, the various challengers, and amici curiae-failed to adequately address the legislative history of the statutory provision at the center of the executive order and subsequent litigation.10 This provision, 212(f) of the Immigration and Nationality Act ("INA"), states in pertinent part:

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.11

There are likely several reasons for this lack of attention. First, the provision appears unambiguous on its face. For some interpreters this is enough, obviating any attempt to pull back the curtain to look at the legislative history behind the text.12 Indeed, this was determinative in the Supreme Court's decision in Trump v. Hawaii.13

A second reason for the lack of attention to the legislative history of 212(f) may be that the statutory provision has been invoked multiple times, almost without controversy, by every President since Reagan.14 The plain-reading understanding of the provision has become an accepted part of the statutory landscape.15 To the extent that this explains why 212(f)'s grant of authority to the President has been uninterrogated, it represents a dangerous complacency in the legal-historical community. As this Note will show, the provision was enacted in 1952 and remained unused for nearly thirty years, raising questions about the precise texture of the provision and our historical understanding of the extent of the power granted.16 Further complicating the picture is the fact that Presidents have invoked the provision with increasing frequency since it was first used by President Reagan, suggesting a tentative exploration of the contours of the provision and an increasing normalization of its use.17 Significantly, the travel ban is the first invocation of 212(f) that suggests a broadly-understood invidious and discriminatory purpose, which could have left it vulnerable to an as-applied challenge.18

The government has long relied on the firmly established plenary power doctrine to argue for the dismissal of due process and equal protection challenges to immigration statutes.19 As traditionally interpreted, the plenary power doctrine relies on the notion that noncitizens outside the borders of the United States are not protected from Congressional or executive action by the United States Constitution.20 However, the cases challenging the travel ban represented an opportunity for the courts to consider just what boundaries are created by the requirements of 212(f). …

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