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)[1].  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[2].  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 USRAP[3] to ensure that admission of Syrian refugees is consistent with the national interest”[4].  

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.[5]   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[6]

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 Obamas 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[7] (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[8].  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 6 months solely for being from Iraq[9], I have been unable to find an executive order or proclamation on this point.  An article from the Washington Post reaches this same conclusion[10].

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

 

 

[1] https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

[2] http://archive.is/6MHuf

[3] U.S. Refugee Admissions Program

[4] https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

[5] http://trumanlibrary.org/publicpapers/viewpapers.php?pid=2389

[7]https://obamawhitehouse.archives.gov/the-press-office/2016/04/19/executive-order-blocking-property-and-suspending-entry-united-states

[8] https://obamawhitehouse.archives.gov/the-press-office/2011/08/04/fact-sheet-president-obama-directs-new-steps-prevent-mass-atrocities-and