On June 25, the Supreme Court in Mullin v. Doe made clear that Congress’s imposition of a bar to judicial review on the designation, or termination or extension of a designation, of a foreign nation’s Temporary Protected Status (TPS) means what it says — a bar to judicial review. I have analyzed the decision here.
But my subject now is neither TPS nor bars to judicial review. It is Justice Samuel Alito’s inclusion in his majority opinion a nugget regarding the fascinating question of whether a president has inherent constitutional power over immigration. Whether Alito intended the nugget as 24 karat gold or fool’s gold is an open question.
In President Trump’s first term, the administration argued in federal court that “The President has broad constitutional power to exclude aliens.” On the first day of President Trump’s second term, he issued a proclamation in which he declared:
The President’s inherent powers to control the borders of the United States, including those deriving from his authority to control the foreign affairs of the United States, necessarily include the ability to prevent the physical entry of aliens involved in an invasion into the United States, and to rapidly repatriate them to an alternative location.
And, at an oral argument before the D.C. Circuit late last year, Deputy Assistant Attorney General Drew Ensign contended that “[T]he President … has inherent Article II authority in order to expel aliens. It’s a fundamental aspect of sovereignty.” (Recording beginning at 11:10.)
As to Justice Alito’s nugget, he quoted D.C. Circuit Judge Laurence Silberman’s separate opinion in the appellate court’s 1988 decision in Hotel & Restaurant Employees Union, Local 25 v. Smith (in which an equally divided court affirmed the judgment of the district court). Alito wrote that:
Judge Silberman, joined by three other judges, observed that review of an [extended voluntary departure] decision would raise separation-of-powers concerns because “[c]ontrol of the country’s policy toward aliens is ‘inherent in the executive power to control the foreign affairs of the nation,’” [quoting the Supreme Court’s 1950 decision in United States ex rel. Knauff v. Shaughnessy] and “‘[m]atters relating “to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference[.]’” [Emphasis added.]
Alito also noted the government’s claim that, in his words, “the Executive[ has] broad authority over the admission and exclusion of foreign nationals”.
In Knauff, the Supreme Court stated that:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. [Citing the Supreme Court’s 1936 decision in United States v. Curtiss-Wright Export Corp. and its 1893 decision in Fong Yue Ting v. United States.] When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. [Emphasis added.]
As I have written, the Supreme Court’s language in Knauff is dramatically at odds with that of multiple other decisions of the Court both preceding and following. As Professor Adam Cox at the New York University School of Law has explained, “the Court has never explicitly returned to the idea of inherent presidential power over immigration”.
The Supreme Court has long held that the “political departments” — the legislative and executive branches — control immigration. For instance, the Court concluded in its 1953 decision in Shaughnessy v. Mezei that “Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.”
But what about the allocation of this sovereign power between the political branches? Cox and Professor Cristina Rodriguez at Yale Law School see only confusion. Cox has written that:
For all th[e] attention to the constitutional distribution of authority between courts and the political branches … immigration courts and commentators have consistently overlooked a second separation of powers issue: the difficult question of how immigration power is distributed within the political branches, between Congress and the executive. [Emphasis in original.]
Cox has fretted that “Constitutional immigration law provides little guidance”, that while “The Supreme Court has sometimes suggested that immigration power is distributed within the political branches in the same fashion as most other lawmaking powers”, “it is far from clear that immigration is like other areas”. He elaborated that:
In most other areas, Article I gives Congress clear supremacy with respect to lawmaking. [“All legislative Powers herein granted shall be vested in a Congress of the United States”, Art. I, § 1.] Immigration law, however, is nothing like this; the constitutional source of power to make immigration law has always been contested and uncertain.
Cox has elsewhere written that “Confusion about the source of immigration power creates substantial uncertainty about the distribution of that authority between Congress and the executive.” Cox and Rodríguez have contended that the Supreme “Court’s reliance on multiple, inconsistent conceptions of the distribution of immigration authority over the years means that the jurisprudential history of immigration law ultimately provides little guidance, much less definitive answers, regarding the political branches’ relative authority in immigration decision-making.”
Yet, despite Cox’s and Rodríguez’s contention, the Supreme Court has seemingly indeed declared a winner. A series of Court decisions dating back to the 19th century demonstrates that, among the political branches, Congress reigns supreme with regard to exclusion, expulsion, and immigration policy as a whole.
In its 1909 decision in Oceanic Navigation Co. v. Stranahan, the Court concluded that “over no conceivable subject is the legislative power of Congress more complete than it is over that with which the act we are now considering [the Act of March 3, 1903, ‘An Act to Regulate the Immigration of Aliens into the United States’] deals”, and that Congress has “absolute power … over the right to bring aliens into the United States”.
In its 1924 decision in Mahler v. Eby, the Court concluded that “The sovereign power to expel aliens is political, and is vested in the political departments of the government. … [T]he executive may not exercise it without congressional authority.” (Emphasis added.)
And the Court famously concluded in its 1954 decision in Galvan v. Press that:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. … But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]
Cox and Rodriguez have written that “Many more recent cases, such as Kleindienst v. Mandel … have reiterated [Galvan’s] language.” In 1972, after quoting from Galvan, the Kleindienst Court concluded that “We are not inclined in the present context to reconsider this line of cases.”
Cox and Rodriguez have posited that “[Galvan’s language] could be read as simply limiting judicial review and recognizing political branch primacy generally. But the reference to ‘Congress’ rather the political branches as a unit could also be read as recognizing congressional primacy.” “Could” be read as recognizing congressional primacy? Galvan phrased it as “entrusted exclusively to Congress”! (Emphasis added.) With all due respect to Cox and Rodriguez, Galvan recognized congressional primacy.
Given the Court’s decisions subsequent to Knauff, culminating in Galvan, it may well be that Knauff became an evolutionary dead-end. Even Cox and Rodriguez concluded that:
Knauff … is in tension with conventional understandings of the separation of powers. The Court linked the power to the capacious and unique conception of executive power defended in United States v. Curtiss-Wright. … [S]een in this light, the Court’s statement in Knauff regarding inherent executive immigration authority appears related to the complexities of the scope and source of the foreign affairs power. The Court’s statement thus could be dismissed as an oddity, simply the product of a historically contingent conception of foreign affairs.
I have remarked that while there are strong reasons to discount Knauff’s continuing relevance, especially since the Court has never again brought up the doctrine, it is of course always possible that the Court in the future could newly adopt it. Well, now the Supreme Court has again brought up the doctrine!
But while Justice Alito has brought it up, he never actually commented on his quotation of Judge Silberman. Did he agree with Silberman? If not, why quote him in the first place, especially because Silberman’s was not a majority opinion and the quoted language related neither to Congress’s reason for creating TPS nor Alito’s holding in Doe. And what of Chief Justice Roberts and Justices Thomas, Kavanaugh, Gorsuch, and Barrett, who joined Alito’s opinion? What was their motivation in joining (assuming they had any thoughts regarding the nugget inserted by Alito)?
Was Justice Alito obliquely trying to reestablish the relevance of Knauff’s claim of inherent presidential power over immigration, with plans to build upon that foundation in future cases?
Even assuming that a president has some measure of inherent constitutional power over immigration, would it be subordinate to the legislative branch? As I have pondered, would the president have the right to violate a duly enacted and constitutional federal immigration statute?
Stay tuned.