Overview of the Federal Government’s Power to Exclude Aliens

Summary

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

The first principle is the foundation of the Supreme Court’s immigration jurisprudence, so well established that the Court has not had occasion to apply it directly in recent decades. The second principle, in contrast, has given rise to the Court’s modern exclusion jurisprudence. In three important cases since 1972—Kleindienst v. Mandel, Fiallo v. Bell, and the splintered Kerry v. Din—the Court applied the “facially legitimate and bona fide” test to deny relief to U.S. citizens who claimed that the exclusion of certain aliens violated the citizens’ constitutional rights. In each case, the Court accepted the government’s stated reasons for excluding the aliens without scrutinizing the underlying facts. This deferential standard of review effectively foreclosed the U.S. citizens’ constitutional challenges. Nonetheless, the Court refrained in all three cases from deciding whether the power to exclude aliens has any limitations. Particularly with regard to the executive branch, the Court left an unexplored margin at the outer edges of the power.

In March 2017, President Trump issued an executive order temporarily barring many nationals of six Muslim-majority countries and all refugees from entering the United States, subject to limited waivers and exemptions. This order replaced an earlier executive order that a federal appellate court had enjoined as likely unconstitutional. Upon challenges brought by U.S. citizens and entities, two federal appellate courts determined that the revised order is likely unlawful, one under the Establishment Clause of the First Amendment and the other under the Immigration and Nationality Act (INA). The Supreme Court agreed to review those cases and, for the meantime, has ruled that the Executive may not apply the revised order to exclude aliens who have a “bona fide relationship” with a U.S. person or entity. In reaching this interim solution, the Supreme Court considered only equitable factors and carefully avoided any discussion of the merits of the constitutional and statutory challenges against the revised order. Even so, the Court’s temporary restriction of the executive power to exclude nonresident aliens abroad is remarkable when compared with the Court’s earlier immigration jurisprudence.

The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).