Feb 15, 2017

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    Recently, there has been quite a bit of discussion and controversy over the executive order President Trump signed into law barring certain classes of foreign-born individuals from entering the United States.  I think it would be useful to go through the legal precedent and history regarding such order.  Given the legal precedent regarding presidential action under these circumstances, I believe President Trump’s executive order on immigration is constitutional.

    To understand this issue, one needs to look at the law on certain powers the president has under the Constitution.  Namely, what are the president’s powers over foreign affairs under the Constitution and to what extent does the president share these powers under the Constitution with other branches of government?

    One case I have heard being floated around justifying President Trump’s executive order is Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948)

    The Supreme Court in that case stated that the president is the primary federal official responsible for the United States’ dealings with foreign nations under the Constitution.  Id. at 112.  Waterman involved the Supreme Court deciding that the president could not be subject to judicial review for decisions made pursuant to the Civil Aeronautics Act, which established a Civil Aeronautics Board to grant applications of foreign air carriers to travel to and from foreign locations into the United States, such applications being subject to presidential approval.  Id. at 114.  However, while I believe Waterman is instructive on this issue, I do not believe it is decisive because it dealt with Congressional regulation of a completely different field; namely, it dealt with congressional regulation of foreign commerce with the United States.

    After Waterman was decided, the Supreme Court decided the landmark case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which I believe sets forth the guiding principles for President Trump’s executive order.  In Sawyer, President Truman issued an executive order directing his Secretary of Commerce to seize all steel mills in the United States in response to a national steel workers’ strike.  Id. at 583.  President Truman justified this action on the fact that the United States military heavily relied on a ready supply of steel in fighting the Korean War.  Id.  President Truman reasoned that since the Korean War dealt with a military conflict on foreign soil, the Constitution gave the president the power, as commander-in-chief, to seize the steel mills.  Id. at 587.

    While Waterman involved Presidential action pursuant to Congressional approval, Sawyer involved Presidential action over matters not explicitly granted to him under the Constitution and without Congressional approval.  Sawyer, 343 U.S. at 583.  Justice Black, writing for the Court, held that the seizure of the steel mills in this case was not within President Truman’s power as commander-in-chief or head of foreign affairs.  Id. at 589.  The Court held that the president’s power to issue the order must stem either from an act of Congress or from the Constitution itself.  Id. at 585.  The Court reasoned that the president, as commander-in-chief of the armed forces, does not have the ultimate power to take possession of private property in order to keep labor disputes from stopping.  Id. at 587.  The Court noted that the president only has the power to implement laws executed by Congress; the president does not have the power to enact policy and then execute that policy enacted by him.  Id. at 588.

    Interestingly enough, Justice Black’s holding in Sawyer is not the test used to determine whether presidential action is constitutional when the area regulated is not explicitly within the president’s powers under the Constitution.  The test set forth by Justice Jackson (ironically, Justice Jackson wrote the opinion and holding in Waterman) in his concurrence in Sawyer is the prevailing law that is still used today in determining whether the president has authority to act when such action involves powers not explicitly given to him under the Constitution.  Sawyer’s holding is still good law and has not been overruled, but it is generally accepted by legal scholars that the test stated by Justice Jackson in his concurrence in Sawyer is the better test to determine the constitutionality of presidential actions under these circumstances.  In his concurrence, Justice Jackson stated that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”  Id. at 635.  Justice Jackson set forth three situations and their legal consequences in determining whether the president has authority to act in any given situation.  Id.  Justice Jackson stated:

    1.)“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right [i.e. Article II] plus all that Congress can delegate.  In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty.  If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.  An [action] by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it;

    2.)When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers [i.e. Article II], but there is a zone of twilight in which he and Congress may have concurrent authority, or in which distribution is uncertain.  Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.  In this area, any actual test of power is likely to depend on the imperative of events and contemporary imponderables rather than on abstract theories of law;

    3.)When the President takes measures with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own Constitutional powers minus any constitutional powers of Congress over the matter.  Courts can sustain exclusive Presidential control in such a case only b[y] disabling the Congress from acting upon the subject.  Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”


    So what are the implications of action pursuant to the three zones above? Under the first zone, the President’s act will likely be held constitutional when Congress has the power to act under Article I and delegates him the authority by law (thus, under this zone, the President likely has all the powers Congress has under Article I and all the powers he has under Article II).  Under the second zone, if Congress has not enacted any laws on the subject or has not regulated the subject, the President can rely specifically on his powers under Article II, but if it is a situation requiring swift, emergency action, the President may act on matters usually held to be within the exclusive control of Congress.  Under the third zone, if Congress has explicitly and specifically denied the President power over affairs to which Congress has authority, the President can only rely on his Article II powers; any exercise of power not explicitly stated in Article II will likely be deemed unconstitutional.


    This brings us to our current situation.  President Trump enacted his executive order pursuant to 8 U.S.C.A. §1182(f), which states as follows:


    “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.”

    8 U.S.C.A. §1182(f) (2103).

    Congress has the explicit power under Article I, Section 8, Clause 4 of the Constitution to establish rules for naturalization, which by the very definition of naturalization would extend to the process of immigrants entering the United States.  U.S. Constitution Article I, Section 8, Clause 4.  Thus, since Congress has this power, it the above quoted statute likely falls under Justice Jackson’s 1st zone in Sawyer because the statute delegates to the President the power that Congress has to determine who may or may not enter this country.  Since it likely does, there should be no reason to declare the President’s executive order unconstitutional because nothing in his executive order states that his power is being exercised pursuant to any other law or reason.

    President Trump has consistently stated his executive order was based on protecting the United States from a terrorist attack and not to ban a certain religious group.  Thus, the Free Exercise Clause under the First Amendment is irrelevant in assessing this executive order because nothing under the order mentions targeting a specific religious belief and no evidence has been brought for showing the administration considered religious beliefs when it enacted the order.  The Supreme Court has held that religion must be specifically targeted, not generally affected under a law of neutral applicability, in order for there to be a violation of the Free Exercise Clause.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).  While the Court in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah stated that facial neutrality of the law is not determinative of a Free Exercise Clause violation and that the Court will look to the purpose behind the law to determine if it targets religion, no evidence has been presented showing that religious discrimination was the intent of the administration in enacting President Trump’s executive order.  Indeed, if that were the intent of President Trump’s order, the order likely would have extended to many more countries than the seven listed.

    Let’s assume for argument sake that the statute (8 U.S.C.A. §1182(f)) has been declared unconstitutional.  If that were the case, President Trump’s executive order would likely fall under Justice Jackson’s 2nd zone because President Trump would be enacting the executive order in a situation in which Congress was silent on his ability to take control over immigration.

    The argument for President Trump in that case would be that his order was pursuant to an emergency and crisis given the increase in terrorist attacks and/or arrest in the United States, Europe, and abroad.  On the other hand, the argument against President Trump’s order without the statute would be that Congress has not delegated to him the authority and it would be a violation of separation of powers to allow President Trump to unilaterally impose his policy on a subject which Congress controls.  My point is that it would still be a 50/50 case under Justice Jackson’s 2nd zone test with good arguments on both sides.

    Nonetheless, since President Trump’s executive order almost certainly falls within the 1st zone of Justice Jackson’s test on determining the validity of presidential action not explicitly listed in the Constitution, President Trump’s executive order is almost certainly constitutional given that it was enacted pursuant to an express grant by Congress under 8 U.S.C.A. §1182(f) and there has been no evidence presented that Congress revoked the president’s authority under 8 U.S.C.A. §1182(f).  Like him or not, President Trump has strong constitutional authority to do what he did in implementing his executive order.


    Daryl Sizemore | Legal Analyst – Right Side News