On September 24, President Trump issued a new proclamation restricting travel to the United States from eight countries— Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela, and North Korea. On Monday, the Supreme Court cancelled oral arguments scheduled for October 10 on the consolidated cases related to the previous iteration of Trump’s travel ban and will consider whether that case is rendered moot by the new proclamation.
The new travel ban, like the previous ones, exceeds the President’s authority under the Immigration and Nationality Act (INA), as HIRC set forth in an amicus brief filed last week. The brief filed by immigration law scholars in the Supreme Court against President Trump’s Executive Order 13780, commonly referred to as the “Muslim ban” or “travel ban.”
The Court consolidated two related cases: Trump v. International Refugee Assistance Project and Trump v. State of Hawaii, the former brought by the American Civil Liberties Union (ACLU), the International Refugee Assistance Project (IRAP), and the National Immigration Law Center (NILC); the latter filed by the State of Hawaii to challenge President Trump’s March 6 Executive Order.
In its brief, HIRC argued that the prior Executive Order’s suspension of entry of nationals from six countries for 90 days and admission of refugees for 120 days exceeded the authority granted to the Executive Branch in the Immigration and Nationality Act. The brief explains why the President’s statutory authority is limited by other provisions of the INA.
First, the INA preserves the primary responsibility over immigration with the Legislative Branch, limiting the power of the Executive Branch and preventing the President from suspending the entry of entire classes of people from the United States. Sections 212(f) and 215(a)(1) of the INA grant the president discretion to limit the entry of immigrants in exigent circumstances but the INA does not grant the Executive unlimited power. In fact, Congress legislated specific criteria for terrorism-related inadmissibility, precluding the President from unilaterally redefining “terrorist activity” to support a blanket ban on immigration from entire nations.
Second, the INA as a whole limits the delegation of authority to the Executive Branch. In particular, the Act unambiguously abolishes national origin discrimination in immigration and refugee admission policies. It states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Although there are some enumerated exceptions to this provision, the Executive Order does not fall within those exceptions, and the President cannot unilaterally create any such exception. Therefore, presidential authority under the INA must conform to the nondiscrimination provision.
Over the past month, three students and an alum from Harvard Law School worked with Fatma Marouf ’02 from Texas A&M University School of Law, HIRC Managing Attorney Phil Torrey, HIRC Assistant Director Sabi Ardalan, and other professors to research, formulate, and draft these arguments concerning statutory interpretation. The students are: Paulina Arnold ‘18, Cristina Azcoitia ‘19, and Dalia Deak ‘19, and the alum is Nathan MacKenzie ‘17. Additional support was provided by Elizabeth Gyori ‘19, Aleema Jamal ‘18, and Rachel Kroll ‘19. HIRC is closely monitoring the status of the current Supreme Court case as well as any litigation that may arise from the implementation of the September 24 proclamation.