Rooted in Precedent and Simultaneously Unprecedented: President Trump’s Executive Action on Immigration
People across the political spectrum have a multitude of opinions on Trump’s executive action barring the entry of people from specific countries. Below I have created a chart that outlines the instances in which section 1182(f) of the INA of 1952 was invoked to bar a certain class of persons from entering the country. Within the context of this statute, I seek to show that while President Trump’s order is rooted in precedent it is simultaneously unprecedented.
On January 27, 2017 President Trump signed an executive order that temporarily suspended for 90 days the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12). The list of countries referred to in section 217(a)(12) was last amended on February 18, 2016 and includes the countries Libya, Somalia, Yemen, Iran, Iraq, Sudan and Syria. The executive order also temporarily suspended the admission of any refugees for 120 days, and indefinitely suspended the entry of refugees from Syria until such time as President Trump determines that “sufficient changes have been made to the U.S. Refugee Admissions Program (USRAP) to ensure that admission of Syrian refugees is consistent with the national interest.”
Section 8 USCS § 1182(f) of the Immigration and Nationality Act of 1952 states:
“Suspension of entry or imposition of restrictions by President. 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.”
The bill containing this provision was vetoed by President Truman, but Congress enacted it into law by overriding that veto. The argument as to whether the President has inherent power to limit the class of people who can enter the country, or whether Congress can limit his power by revoking the statute is a lively debate.
Presidents Reagan, Clinton, Bush (43) and Obama have all invoked Section 8 USCS § 1182(f) of the INA act of 1952 to suspend immigration to classes of people from various countries. See chart in addendum 2 below.
Up until now, the scalpel used to craft these orders sought to excise a class of persons whom engaged in certain affirmative acts. These acts may have occurred inside a particular geographical location or may have been deemed to be against the best interest of the United States regardless of their geographical location. The variance between these two principles can best be illustrated by looking at two of President Obama's executive orders. Executive Order 13726 limited the entry of certain persons from Libya who threatened peace, committed attacks against any Libyan state facility, targeted civilians or committed illicit exploitation of crude oil (Geography + Action = bar). The central point of this executive action was to ensure that people within Libya who engaged in the enumerated actions could not enter the United States. Alternatively, Proclamation 8697 sought to limit the entry of individuals who participated in serious human right violations (Action = bar). President Obama sought to enforce this bar as a way to ensure that the US would not become a safe haven for human rights violators. As it is not moored to a geographical location, proclamation 8697 has a wider scope than executive order 13726. Nonetheless, in order to trigger a bar under proclamation 8697 an individual had to engage in heinous activities themselves.
Much like President Obama’s executive order 13726, President Trump’s order is limited by geography. The major difference is that there is no activity an individual has to engage in, in order to trigger the bar under President Trump’s order. The only way to avoid the bar is to be a “foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas.” Essentially under President Trump’s order, Geography = bar, unless you are a diplomat.
The restriction based on geography without a corresponding activity is where the truly unprecedented nature of President Trump’s order lies.
There is no doubt that past presidents have set a clear precedent for barring a class of people from a particular geographic area who have engaged in certain actions. In this regard, President Trump is not breaking new ground. As the chart below shows, at least four prior Presidents have invoked 1182(f) to do the same thing. President Trump is breaking new ground in seeking to bar people from a particular geographic area without requiring them to have engaged in any particular kind of activity.
Addendum 1:
While there are reports that President Obama halted refugees from Iraq entering the country for six months solely for being from Iraq, I have been unable to find an executive order or proclamation on this point. An article from the Washington Post reaches this same conclusion.
Addendum 2:
Below is a chart I created regarding prior instances in which 1182(f) has been invoked. I invite people to cross-reference and read the orders for yourself and come to your own conclusions.
|
# for P. |
Implementing President |
Proclamation/ Executive order |
Suspended Class |
Federal Register |
|
1 |
Ronald Reagan |
Proclamation 4865 of September 29, 1981 |
Undocumented aliens entering from the high seas |
46 FR 48107 |
|
2 |
Ronald Reagan |
Proclamation 5377 of October 4, 1985 |
Officers or Employees of the Government of Cuba or the Communist Party of Cuba |
50 FR 41329
|
|
3 |
Ronald Reagan |
Proclamation 5517 of August 22, 1986 |
Suspension of Certain Cuban Immigration with exceptions |
51 FR 30470 |
|
4 |
Ronald Reagan |
Proclamation 5887 of October 22, 1988 |
Officers and Employees of the Nicaraguan Government |
53 FR 43184 |
|
1 |
William J. Clinton |
Proclamation 6636 of December 10, 1993 |
Persons Who Formulate, Implement, or Benefit From Policies That Are Impeding the Transition to Democracy in Nigeria |
58 FR 65525
|
|
2 |
William J. Clinton |
Proclamation 6574 of June 21, 1993 |
Persons Who Formulate or Implement Policies That Are Impeding the Transition to Democracy in Zaire or Who Benefit From Such Policies |
58 FR 34209 |
|
3 |
William J. Clinton |
Proclamation 6569 of June 3, 1993 |
Persons Who Formulate or Implement Policies That Are Impeding the Negotiations Seeking the Return to Constitutional Rule in Haiti |
58 FR 31897 |
|
4 |
William J. Clinton |
Proclamation 6685 of May 7, 1994 |
Aliens Whose Entry is Barred Under United Nations Security Council Resolution 917 or Who Formulate, Implement, or Benefit from Policies that are Impeding the Negotiations Seeking the Return to Constitutional Rule in Haiti |
59 FR 24337 |
|
5 |
William J. Clinton |
Proclamation 6730 of September 30, 1994 |
Persons Who Formulate or Implement Policies That Are Impeding the Transition to Democracy in Liberia or Who Benefit From Such Policies |
59 FR 50683 |
|
6 |
William J. Clinton |
Proclamation 6925 of October 3, 1996 |
Persons Who Formulate or Implement Policies That Are Impeding the Transition to Democracy in Burma or Who Benefit From Such Policies |
61 FR 52233 |
|
7 |
William J. Clinton |
Proclamation 6958 of November 22, 1996 |
Persons Who Are Members or Officials of the Sudanese Government or Armed Forces |
61 FR 60007 |
|
8 |
William J. Clinton |
Proclamation 7060 of December 12, 1997 |
Persons Who Are Senior Officials of the National Union for the Total Independence of Angola ("UNITA") and Adult Members of Their Immediate Families |
62 FR 65987 |
|
9 |
William J. Clinton |
Proclamation 7062 of January 14, 1998 |
Persons Who Are Members of the Military Junta in Sierra Leone and Members of Their Families |
63 FR 2871 |
|
10 |
William J. Clinton |
Proclamation 5829 of June 10, 1988 |
Persons who Formulate or Implement the Policies of the Noriega/Solis Palma Regime |
53 FR 22289 |
|
11 |
William J. Clinton |
Proclamation 7249 of November 12, 1999 |
Persons Responsible for Repression of the Civilian Population in Kosovo or for Policies That Obstruct Democracy in the Federal Republic of Yugoslavia (Serbia and Montenegro) ("FRY") or Otherwise Lend Support to the Current Governments of the FRY and of the Republic of Serbia |
64 FR 62561 |
|
12 |
William J. Clinton |
Proclamation 7359 of October 10, 2000 |
Persons Impeding the Peace Process in Sierra Leone |
65 FR 60831 |
|
1 |
George W. Bush |
Proclamation 7452 of June 26, 2001 |
Persons Responsible for Actions That Threaten International Stabilization Efforts in the Western Balkans, and Persons Responsible for Wartime Atrocities in That Region |
66 FR 34775 |
|
2 |
George W. Bush |
Proclamation 7524 of February 22, 2002 |
Persons Responsible for Actions That Threaten Zimbabwe's Democratic Institutions and Transition to a Multi-Party Democracy |
67 FR 8857 |
|
3 |
George W. Bush |
Proclamation 7750 of January 12, 2004 |
Persons Engaged in or Benefiting from Corruption |
69 FR 2287
|
|
4 |
George W. Bush |
Proclamation 8015 of May 12, 2006 |
Persons Responsible for Policies or Actions That Threaten the Transition to Democracy in Belarus |
71 FR 28541 |
|
5 |
George W. Bush |
Proclamation 8158 of June 28, 2007 |
Persons Responsible for Policies and Actions That Threaten Lebanon's Sovereignty and Democracy |
72 FR 36587
|
|
6 |
George W. Bush |
Proclamation 8342 of January 22, 2009 |
Foreign Government Officials Responsible for Failing To Combat Trafficking In Persons |
74 FR 4093
|
|
1 |
Barack Obama |
Proclamation 8693 of July 24, 2011 |
Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions |
76 FR 44751 |
|
2 |
Barack Obama |
Proclamation 8697 of August 4, 2011 |
Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses |
76 FR 49277 |
|
3 |
Barack Obama |
Executive Order 13606 of April 22, 2012 |
Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology |
77 FR 24571 |
|
4 |
Barack Obama |
Executive Order 13608 of May 1, 2012 |
Foreign Sanctions Evaders With Respect to Iran and Syria |
77 FR 26409 |
|
5 |
Barack Obama |
Executive Order 13619 of July 11, 2012 |
Persons Threatening the Peace, Security, or Stability of Burma |
77 FR 41243 |
|
6 |
Barack Obama |
Executive Order 13628 of October 9, 2012 |
Certain Persons With Respect to Iran |
77 FR 62139 |
|
7 |
Barack Obama |
Executive Order 13645 of June 3, 2013 |
Certain Persons With Respect to Iran |
78 FR 33945 |
|
8 |
Barack Obama |
Executive Order 13661 of March 16, 2014 |
Persons Contributing to the Situation in Ukraine |
79 FR 15535 |
|
9 |
Barack Obama |
Executive Order 13662 of March 20, 2014 |
Persons Contributing to the Situation in Ukraine |
79 FR 16169 |
|
10 |
Barack Obama |
Executive Order 13667 of May 12, 2014 |
Certain Persons With Respect to Central African Republic |
79 FR 38248 |
|
11 |
Barack Obama |
Executive Order 13685 of December 19, 2014 |
Certain Persons conducting Transactions With Respect to the Crimea Region of Ukraine |
79 FR 77357
|
|
12 |
Barack Obama |
Executive Order 13687 of January 2, 2015 |
Certain Persons With Respect to North Korea |
80 FR 819 |
|
13 |
Barack Obama |
Executive Order 13692 of March 8, 2015 |
Certain Persons Contributing to the Situation in Venezuela |
80 FR 12747 |
|
14 |
Barack Obama |
Executive Order 13712 of November 22, 2015 |
Certain Persons With Respect to Burundi |
81 FR 19878 |
|
15 |
Barack Obama |
Executive Order 13726 of April 19, 2016 |
Persons Contributing to the Situation in Libya |
81 FR 23559 |