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A ‘Travel Ban’ History Lesson

Constitutional rights versus presidential power: An unresolved question lingers still.


The Supreme Court’s partial affirmation of lower courts’ injunctions against Donald Trump’s travel ban reflects a deep historical tension. The struggle between constitutional rights and presidential power to protect “national security” by excluding or deporting noncitizens goes back at least as far as the Alien and Sedition Acts in the 1790s. But, to this day, the Court has never definitively resolved it.

Were the President’s order directed almost anywhere other than at noncitizens seeking entry from abroad, the basic legal framework would be relatively straightforward: The Constitution surely protects us from governmental establishment of preferred religions or discrimination against disfavored ones. Discrimination based on race, ethnicity, or national origin demands the highest possible—and most specific—justifications. Courts may certainly look to public (and, for that matter, private) statements of political actors to infer intent, even in regard to apparently neutral official acts. Certain types of procedural regularity are demanded of all government actions to avoid arbitrary and capricious orders that may cause real harm to those affected by them.

So what is different here? Surprisingly, in the “nation of immigrants” immigration law (which includes the exclusion and deportation of noncitizens implemented by statutes and by executive actions like the “travel ban”) has been held by the Court to be exempt from many such norms.

This is especially true of exclusion laws. For example, nearly a quarter century after the ratification of the Fourteenth Amendment, the Supreme Court unanimously upheld the statutory exclusion of Chinese laborers as part of a disfavored “race” in Chae Chan Ping v. United States, 130 US 581 (1889). Though this is widely regarded as one of the most shameful decisions in US history, the basic acceptance of racial exclusion (and, for that matter, race-based restrictions on naturalization) was not fundamentally rejected until the mid-twentieth century.

Moreover, immigration statutes and executive orders have long barred, among many others: anarchists, polygamists, communists, Nazis, terrorists, etc. Put simply, in many respects, the border has been seen as a largely lawless zone in which the regular rules of constitutional law do not apply. Although many—ranging from Jefferson and Madison in the 1790s to the vast majority of today’s immigration law scholars—have criticized this model, it still stands.

Immigration statutes grant the President extraordinary discretion to implement exclusion laws, especially those that relate to “national security.” Indeed, the President may bar any class of “aliens” who would be “detrimental to the interests of the United States….” 8 U.S.C., Section 1182(f).

The constitutional question is this: Is there any limit to such discretion? Historically, the Court has sometimes deferred to the President’s judgment and power. It is thus unsurprising that the government’s petition for certiorari in the recent travel ban case cited a widely criticized McCarthy-era precedent that had upheld the exclusion of the wife of a US citizen, without a hearing, because the executive found that her admission “would be prejudicial to the interests of the United States” in United States ex rel. Knauff v. Shaughnessy, 338 US 537 (1950).

The Trump travel bans (assuming the case is not ultimately resolved by technical issues such as “standing”) requires the Court to decide whether there are any meaningful legal protections in this context. Some more recent precedents have seemed to lean in this direction, though constitutional claims have generally been rejected.

In 1972, for example, the Nixon Administration sought to bar a Belgian Marxist scholar, Ernst Mandel, from lecturing in the US. Mandel was banned by a statute excluding those who espoused “the economic, international, and governmental doctrines of world communism”—a formulation that in other contexts would surely raise First Amendment concerns. The Court held that neither Mandel nor his audience could rely on the First Amendment as such. However, in an important formulation that may control the current litigation, the Court held that the government must at least offer a “facially legitimate and bona fide reason,” Kleindienst v. Mandel, 408 US 753 (1972). More recently, in Kerry v. Din, the Court divided sharply over a claim by a US citizen that the denial of a visa to her husband implicated her due-process rights, 135 S. Ct. 2128 (2015).

Moreover—contrary to the woefully sloppy drafting of the first Trump order—the Court has long held that returning lawful permanent residents have powerful rights to procedural due process and other constitutional protections, Landon v. Plasencia, 459 US 21 (1982). Put simply, it is clear at the very least that the border is not a completely lawless zone; the executive’s discretion, even when national security is at issue, is not entirely unfettered. There are legal limits.

So where does the Court’s decision leave us? For now, until Trump’s case is fully decided, the ban only applies to those who lack “any bona fide relationship with a person or entity in the United States.” The ban will not apply to those who brought the lawsuit or to others who are “similarly situated.” The exact scope of this protected group is unclear, though the Court gives some examples. (“a close familial relationship” or a “formal documented” relationship with a US entity “formed in the ordinary course…” such as an admitted student or a worker with a prior contract).

Still, as the three dissenters, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, noted, this “remedy” could prove “unworkable” and may well invite “a flood of litigation.” Tragically, it does seem that most refugees may not qualify. The executive branch will make these decisions on a case-by-case basis, followed by sporadic legal challenges, which will await the Supreme Court’s ultimate decision.

In sum, though much remains unclear, the Court has affirmed a very important legal principle: Executive orders relating to the exclusion of noncitizens—even for ostensible national security reasons—are subject to meaningful judicial scrutiny and to some Constitutional restraint. Unless the composition of the Court changes, it will likely fall to Justices Anthony Kennedy and John Roberts to decide whether to passively defer to the unfettered discretion of Donald Trump or, finally, to clarify how regular legal and constitutional principles may restrain apparent excesses of presidential power.

BC Law Professor Daniel Kanstroom is the Thomas F. Carey Distinguished Scholar and Co-Director of the Center for Human Rights and International Justice at Boston College.