Published by The Lawfare Institute
in Cooperation With
Long before Guantanamo Bay became infamous for its role in post-9/11 America, the naval base was at the center of a different national security fight. During the early 1990s, Guantanamo housed thousands of Haitian refugees in a tent city on an abandoned runway where the military commission complex now stands. They fled Haiti following a military coup, but President George H. W. Bush instructed the Coast Guard to interdict them at sea before they could reach American soil and apply for asylum. The Supreme Court upheld Bush’s action based on his broad statutory powers to exclude aliens from U.S. soil (see Sale v. Haitian Centers Council).
President Trump has now invoked the same legal authority that President Bush cited— § 212(f) of the Immigration and Nationality Act (INA)—to ban immigrants from seven Muslim-majority countries as well as Muslim refugees from around the world. There is now a question of whether that law supports the Trump policy.
In upholding the Bush policy, the Justices reasoned that § 212(f) “grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.” And it is true that § 212(f) is a broad delegation of authority to the President, permitting him to issue a “proclamation” suspending “the entry of all aliens or any class of aliens . . . or impose any [entry] restrictions he may deem to be appropriate.” The only caveat—in this section—is a requirement that the President find entry of those aliens to be “detrimental to the interests of the United States.”
The primary difference between the Bush and Trump policies is that the Muslim ban has a well-documented ideological focus that the Haitian crisis did not have. Defenders of the Trump order balk at the suggestion that it is a “Muslim ban,” pointing out that many Muslim-majority countries are not included. But the overwhelming and predictable effect of the order is a ban that does not apply to all Muslims, but does apply only to Muslims. Likewise, the avowed intent belies the argument that it is a permissible form of exclusion based on national origin. Here’s why:
Trump flatly admitted on the campaign trail that national origin is a proxy for targeting Muslims. And there is no shortage of additional evidence pointing to such bald animus, including extensive pre-inauguration rhetoric. This distinction has significant constitutional implications, as I have previously argued. The President has broad powers to enforce immigration law, but some circuits have warned that a policy based on actual discriminatory intent toward Muslims may violate the Equal Protection component of the Fifth Amendment’s Due Process Clause.
Of course, as others have noted, courts might be reluctant to accept campaign statements as grounds for invalidating actual policy. But there is plenty of recent evidence as well, including Rudy Giuliani’s comments over the weekend explaining how Trump explicitly sought to craft a “Muslim ban” that passed legal muster. Additionally, Trump’s decision to issue the order within a week of taking office is a strong signal that it is an effort to fulfill a central campaign promise. The President only reinforced this framing when he added, “We all know what that means” after reading out the title of the order (“Protection of the Nation from Foreign Terrorist Entry Into the United States”). Finally, it is difficult to reconcile the ban with its stated purpose given that immigrants from the seven nations targeted were not responsible for the attacks of 9/11 and have never carried out a fatal terrorist attack on American soil.
More importantly, despite the fig leaf of nationality, the order is not facially neutral with respect to religion. It contains an explicit exception for persecuted religious minorities within a list of Muslim-majority countries—which is, by default, a form of religious discrimination against Muslims. So, for example, Yazidi refugees fleeing ISIS in Iraq might qualify for a waiver, but Shiite Muslims targeted by the same terror group would not—simply by virtue of their religion. Trump has emphasized this point as well, telling the Christian Broadcasting Network that he would prioritize Christian refugees over Muslims.
A ban targeting Muslims is not only constitutionally problematic; it is statutorily problematic as well. While the plain language of § 212(f) is quite broad and deferential to the President, other parts of the same law explicitly forbid the kind of ideological exclusion embodied in the ban.
One particularly relevant provision of the INA is § 212(a)(3)(C)(iii), which prohibits excluding aliens based on foreign policy concerns rooted in “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.” It also creates an intentionally burdensome waiver process for the Secretary of State.
The purpose behind this provision dates back to 1977, when Congress passed the “McGovern Amendment,” requiring the Attorney General to grant visas to people otherwise excludable under INA § 212(a)(28) on the grounds of their affiliation with certain proscribed groups (i.e., communists). If the Attorney General did not grant a waiver, then the Secretary of State had to personally certify to Congress that admission would be contrary to American security interests.
In the 1980s, President Reagan repeatedly tried to evade this requirement by invoking a different section of the INA— § 212(a)(27)—which permits exclusion based on foreign policy considerations. But Congress and the courts rejected this as sleight of hand. Both the D.C. Circuit and the First Circuit rejected the President’s section-shopping and held that subsection (a)(27) cannot be used as a substitute for subsection (a)(28).
And in 1987, Congress responded by passing the “Moynihan-Frank Amendment,” explicitly prohibiting the President from excluding foreigners based on their beliefs. The provision became permanent with the enactment of the Immigration Act of 1990, as codified in § 212(a)(3)(C)(iii). The statute made clear Congress’s intent to end the practice of ideological exclusion. As the Senate Foreign Relations Committee put it:
For many years, the United States has embarrassed itself by excluding prominent foreigners from visiting the United States solely because of their political beliefs. Among those excluded, or harrassed [sic], in recent years have been Nobel Laureates Gabriel Garcia Marquez and Pablo Neruda, and authors Graham Greene, Doris Lessing, and Carlos Fuentes. In these cases and others, the excluded individuals had done no more than exercise rights to freedom of expression and association enshrined in the Universal Declaration of Human Rights – rights promoted in congressionally-initiated human rights legislation and constitutionally protected for all U.S. citizens.
S. Rep. No. 100-75 at 11, 100th Cong., 1st Sess. (1987). The House similarly decried the Executive’s use of immigration law to deny American citizens “the opportunity to have access to the full spectrum of international opinion,” stating that “the reputation of the United States as an open society, tolerant of divergent ideas, has suffered.” H.R. Conf. Rep. No. 100-475 at 162-63, 100th Cong., 1st Sess. (1987). Indeed, according to the legislative history, the whole point was “to take away the executive branch’s authority to deny visas to foreigners solely because of the foreigner’s political beliefs or because of his anticipated speech in the United States”—in what the Senate Report deemed an “affirmation of the principles of the First Amendment.” S. Rep. No. 100-75 at 11.
It is significant to note that the INA does not itself eschew all forms of ideological discrimination. Per § 212(a)(3)(E)(i), for example, Nazis are not allowed visas. And Communists are still excludable under § 212(a)(3)(D)(i). The point is that the President has only as much authority as Congress gives him. If Trump were to try the same trick with a different provision of the INA, it would raise the same constitutional concerns. Congress has specifically prohibited ideological exclusion based on the whims of the Executive.
Moreover, at least one federal appellate court, the D.C. Circuit, has addressed the underlying First Amendment issue, finding that the President has wide latitude to deny entry to aliens for “any number of specific reasons,” but he “may not, consistent with the First Amendment, deny entry solely on account of the content of speech.” It is not a large leap to apply that reasoning to another First Amendment right, freedom of religion. Faith is a form of ideology, and as the Supreme Court has repeatedly said, religious discrimination is a form of viewpoint discrimination.
Section 212(f) is not a blank check, and at least to date, it has never been used for the purpose of ideological exclusion. Moving forward, the big question for the courts will be whether President Trump’s executive order runs afoul of the will of Congress and infringes on the constitutional rights of Americans. There is a good case to be made that it does.