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Exactly how much immigration authority does Trump have? Well.... By Nolan Rappaport

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© Getty

President Donald Trump’s immigration executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” imposes a 90-day suspension on admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States.

These countries were taken from a list compiled for section 217(a)(12) of the Immigration and Nationality Act (INA), which excludes aliens who have been present in a specified country from participating in the Visa Waiver Program.

The order also requires the creation of a list of countries that refuse to provide information needed to determine that an individual seeking to enter the United States “is who the individual claims to be and is not a security or public-safety threat.”

The countries on this list will be considered “for inclusion on a presidential proclamation that would prohibit the entry of foreign nationals … from countries that do not provide the” requested information “until compliance occurs.”

President Trump bases these actions on his authority under the provisions of section 212(f) of the INA, the pertinent part of which reads as follows:

Read more at --
http://thehill.com/blogs/pundits-blo...rump-have-well

Posted originally on The Hill.

About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.





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Updated 02-09-2017 at 08:15 PM by ImmigrationLawBlogs

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  1. ImmigrationLawBlogs's Avatar
    Update, February 11, 12:10 pm:

    In view of his dangerous claims to have absolute power over immigration, something which is only one step down the road to one-man rule over all aspects of American government and society, isn't it already time to start thinking about impeaching Donald Trump?

    (As POLITICO wisely suggests):

    http://www.politico.com/story/2017/0...nt-bets-234931

    Update, February 10, 2017, 6:05 am:

    How much authority does the president have to act as a king or emperor over which immigrants can enter the United States? Not as much as Donald Trump thinks, the 9th Circuit ruled on February 9th, 2017 a shining day in US immigration legal history.

    Any contention that a US president has unlimited power over immigrant entry conferred by INA 212(f) is now where it deserved to be all along - in the ashcan of history, along with Dred Scott, US v. Korematsu, and the Chinese exclusion laws.

    And if Trump's January 27 Muslim immigration ban order was a trial balloon to see how much power Trump could wield over the American people in all aspects of life by bludgeoning the other two branches of government into cowed submission through imperial executive orders and intimidating tweets, as it surely was, that trial balloon has now been deflated by a courageous federal appellate court decision that puts preserving America's democracy ahead of everything else.


    My original comment follows:

    Trump's own DOJ attorney conceded on oral argument before the 9th Circuit on February 7 that presidential power under 212(f) is not unlimited, but that is is subject to due process and equal protection guarantees affecting US citizens. Read the extract from the argument in the NY Times and other media.

    This is exactly what Kerry v. Din (2015) and Kleindienst v. Mandel (1972) also imply. That is why these two landmark Supreme Court cases were discussed in some detail at the 9th Circuit oral argument on February 7.

    Obviously, Trump dosn't like the idea that he might have less power to ban Muslims than the Roman emperor Tiberius had to expel Jews and Isis supporters (the goddess, not the terror group!) 2,000 years ago.

    (See my own February 7 ilw.com/Immigration Daily comment.)

    But the fact that the idea of any limits on his power over immigration might create a Furor with America's new Leader (German pun absolutely indended) is not a reason for lawyers to buy into that kind of pipe dream.

    Roger Algase
    Attorney at Law
    Updated 02-12-2017 at 11:12 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Roger, no court decision has found limits on that authority, and it has been around for more than half a century.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    The reason that the courts may not have stepped in to place limitations on Section 212(f) is that this statute has been used in only a limited and sparing way up to now by previous presidents. This is the first time that it has been used in such a broad and heavy handed way to bar up to 200 million people from entering the United States with so little justification in fact and with such a direct effect on the religious freedom and other Constitutional rights of millions of American citizens.

    No one should be surprised if Trump's unprecedented expansion of presidential power under this statute leads to an unprecedented reaction by the judicial branch, whose independence Trump is trying to destroy, not only by his vicious attacks against individual federal judges, but by his latest assault on the entire 9th Circuit by calling its questioning of his will in issuing this executive decree "disgraceful"

    The 9th Circuit panel is doing its job as an independent branch of the government under our Constitution.

    Trump is doing the work of a dictator.


    I suggest that Nolan might want to reread the two leading Supreme Court decisions I have mentioned. They do not expressly limit the president's power to bar immigrants unilaterally, but they point the way, as the 9th Circuit indicated during oral argument. See my February 8 Immigration Daily comment in this point.

    And when Trump's Muslim and refugee ban is struck down by the 9th Circuit, as it almost certainly will be, and it goes up to the Supreme Court, what chance is there that the 9th Circuit's decision against Trump (as I predict) will be overturned?

    If Trump is lucky, the 9th Circuit will be upheld by a 4-4 tie in the Supreme Court. But Trump cannot even be sure about that. A 6-2 decision against him, with Roberts and Kennedy joining the liberal Justices, is not out of the question.

    If Neil Gorsuch, who has now reprimanded Trump for his unconscionable attack on District Judge Robart, is confirmed before the Court makes its decision, Trump could conceivably lose 7-2 in the High Court.

    There is also more at stake here than which immigrants get admitted to the US and from where. The independence of the entire judiciary is at issue.

    If the courts no longer have the power to curb abuses of executive power in immigration cases - something that Trump's own man Neil Gorsuch has been very strong on in particular, then America will no longer be a democracy.

    In addition to shaking hands with Vladimir Putin, Trump will be able to look back across 2,000 years and shake hands with the Roman emperor Tiberius who threw out the Jews (after forcing then to burn their religious garments - see my February 7 Immigration Daily comment) just as Trump has threatened to put mosques under surveillance in the US and to force those who pray in them to register.

    Roger Algase
    Attorney at Law
    Updated 02-09-2017 at 01:14 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Here's a hypothetical question for you Nolan:

    A president issues an executive order under INA Section 212(f) saying than only members of the white race may receive visas to enter the US (using language from early 20th century Supreme Court decisions regarding eligibility for naturalization to define who is white).

    Legal? Courts have no power to intervene? Would you be prepared to defend such an order in court?

    Hypo #2:

    Same order as Trump has just issued, but with Israel, which has suffered more than its fair share of terrorist attacks and has plenty of Palestinians living there who might arguably want to harm America, added to the list of banned countries.

    Looking for forward to seeing your defense of that one. Don't forget - 212(f) has no limits on presidential power, according to your theory.

    Roger Algase
    Attorney at Law
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Here's a hypothetical question for you Nolan:

    A president issues an executive order under INA Section 212(f) saying than only members of the white race may receive visas to enter the US (using language from early 20th century Supreme Court decisions regarding eligibility for naturalization to define who is white).

    Legal? Courts have no power to intervene? Would you be prepared to defend such an order in court?

    Hypo #2:

    Same order as Trump has just issued, but with Israel, which has suffered more than its fair share of terrorist attacks and has plenty of Palestinians living there who might arguably want to harm America, added to the list of banned countries.

    Looking for forward to seeing your defense of that one. Don't forget - 212(f) has no limits on presidential power, according to your theory.

    Roger Algase
    Attorney at Law
    Roger, try not to confuse me with our President. You aren't supposed to be distorting and misrepresenting what I say. That's only good when you are talking about Trump. You can tell us apart very easily. He has much longer hair than I do.

    I didn't say that there are no limits on the president's 212(f) powers. I quoted the following sentence from a January 23, 2017, CRS report:

    “Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the President’s exercise of his authority to exclude aliens under this provision.”

    I also said,

    But in no case to date has a President excluded aliens based on their religion. An argument could be made that this would be unconstitutional.

    Finally, I said that Trump didn't add any countries to the list he used for the 90-day ban.

    Congress put Iraq and Syria on this list, and the Obama Administration added Iran, Sudan, Libya, Somalia, and Yemen as “countries of concern.”

    The criterion in section 217(a) (12) for designating a “country or area of concern” is a determination that (1) the “presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;” (2) “a foreign terrorist organization has a significant presence in the country or area;” and (3) “the country or area is a safe haven for terrorists.”

    Trump can add more countries to the list, but he would have to make the same findings that Obama did.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    Admittedly, there are few limits on the president's power under Section 212(f) in the case law to date, even though the two leading Supreme Court decisions I have mentioned, both of which the 9th Circuit referred to in oral argument on February 7, point in that direction.

    But, as I mentioned earlier, no previous president has ever asserted the kind of sweeping power to ban almost 200 million people from seven countries, all of whom just happen to be Muslims, from our shores without any individual showing that they fit into any of the banned immigrant classes specifically mentioned in the INA.

    Obviously, the 212(f) powers are in the nature of emergency powers to deal with an imminent threat to America.

    They were never meant to be used to ban 200 million people (to begin with - the ban can be and probably will be extended to many more unless the courts strike it down permanently) because they happen to belong to a religion that our Leader-in-Chief doesn't like.

    And Nolan hasn't answered my questions about whether the ban would be defensible if extended to, say, Israel, or to all non-white countries, as was the case with the 1924 immigration law which the people who reportedly wrote Trump's executive order have indicated their support for or are associated with people who have done so, according to news reports.

    Having said the above, I apparently overlooked Nolan's statement that an argument could be made that banning immigrants on the basis of religion would be unconstitutional.

    On that point, I certainly agree with Nolan and I should have made that point clear in my previous comment.

    Roger Algase
    Attorney at Law
    Updated 02-09-2017 at 01:54 PM by ImmigrationLawBlogs
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