In invalidating the latest iteration of the travel ban, known as the Proclamation, the Ninth Circuit Court of Appeals reached an important question of first impression: whether the policy could be supported by the President’s independent Article II authority. The Hawaii v. Trump panel held that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” This conclusion is the most important sentence in the entire 77-page opinion. If the president has the inherent power to deny entry to aliens, then the court’s Immigration and Nationality Act (INA) analysis is largely superfluous. If he lacks such a power, then the Ninth Circuit’s statutory analysis would hold up on appeal.

In my very first post for Lawfare, I explained why the first iteration of the travel ban was within the President’s statutory and constitutional authority:

President Trump’s executive order does not wallow in [Justice] Jackson’s third tier [of Youngstown], nor does it linger in the so-called “zone of twilight.” Through §1182(f) Congress has, with unequivocal language delegated its Article I powers over immigration to the President. In Trump’s own words—as a relevant statement about the scope of his constitutional authorities—it “couldn’t have been written any more precisely.” Further, as a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. As a result, the President was acting pursuant to an amalgamation of Article I and Article II powers, combined. Here, Jackson’s first tier provides the rule of decision

I stand by this framework, and predict that the question of Article II authority will undergird the Supreme Court’s final resolution of the case. Contrary to the Ninth Circuit’s analysis, the court will not invalidate this policy because it resides in Justice Jackson’s third tier, but instead uphold it, because it stands in the second, or more likely the first tier of Youngstown. More likely, to avoid the difficult constitutional questions raised by the Ninth Circuit’s statutory analysis—about the scope of the President’s Article II powers—I predict that the court will adopt a saving construction that permits the executive branch to implement “procedures” that deny entry and visas based on nationality.

Congress’s Power over “Naturalization”

The Ninth Circuit musters three cases to support the proposition that the president lacks independent constitutional authority to deny entry to aliens. First, the court cites Galvan v. Press (1954) for the proposition that “that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.” But what “policies” were at issue? Galvan concerned whether an alien already in the United States, who had joined the Communist party, was subject to deportation. This case said nothing at all about the president’s independent Article II power to deny entry.

Second, the court cites INS v. Chadha (1983). This case too concerned the power over removal of an alien already in the United States. I have no doubt that, as Chief Justice Warren Burger observed, “[t]he plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question.” As the Chadha court noted, “Congress’ Article I power ‘To establish a uniform Rule of Naturalization,’ combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens.” But the Chadha court had no occasion to discuss the president’s independent power to deny entry to aliens.

The third case cited is the most relevant, but ultimately is not probative. In Fiallo v. Bell (1977) several fathers of illegitimate children who were denied visas challenged the statute’s constitutionality on equal protection and due process grounds. This case, unlike Galvan and Chadha, actually involved aliens who were outside the United States. However, it considered the application of Congress’s naturalizations laws, concerning the issuance of visa. The court “rejected the suggestion that more searching judicial scrutiny is required,” even when “immigration legislation” intrudes “on other constitutional rights of citizens.” Again, there was no need here to address if the president’s independent authority could possibly override the statutory scheme.

“Inherent in the Executive Power”

There was a fourth case, that was cited by Judge Bybee’s dissent from denial of rehearing en banc in Washington v. Trump, but was not cited by the Hawaii v. Trump panel: United States ex rel. Knauff v. Shaughnessy (1950). The case addressed the interaction between the president’s inherent authority over entry and Congress’s rules concerning naturalization. Knauff, a German national, married an American citizen who was stationed in Frankfurt. She attempted to enter the United States, but was “detained at Ellis Island.” (Note that an alien has not actually entered the United States until clearing the checkpoint). Without a hearing, an immigration official determined “her admission would be prejudicial to the interests of the United States,” and the Attorney General “entered a final order of exclusion.” The Southern District of New York dismissed Knauff’s habeas corpus writ and the Second Circuit affirmed.

Through a 1941 law, Congress gave the president the power to issue a proclamation, which would have the effect of rendering “unlawful” the “entry into the United States” of certain aliens when “the President shall find that the interests of the United States require that restrictions.” In other words, Congress permitted the president to effectively amend the statutory grounds for inadmissibility. President Roosevelt issued such a proclamation, which ordered that “no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This open-ended language is very similar to 8 U.S.C. 1182(f), which would be enacted a decade later.) Pursuant to this proclamation, the Attorney General promulgated the regulations that denied Knauff’s entry into the United States. On appeal to the Supreme Court, Knauff argued that the “1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power.”

The court rejected this argument, explaining that the power at issue in the 1941 act was not a legislative power at all; it was an inherent executive power. “The exclusion of aliens is a fundamental act of sovereignty,” Justice Sherman Minton stated. “The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Thus, there cannot be a violation of the non-delegation doctrine, because Congress is not delegating legislative power at all. The court supported this argument with a citation to United States v. Curtiss-Wright, which also rejected a non-delegation doctrine challenge because the President was exercising his exclusive powers concerning foreign affairs.

What was the 1941 act doing then, if not delegating legislative power? “When Congress prescribes a procedure concerning the admissibility of aliens,” the court explained, “it is not dealing alone with a legislative power.” Rather, “[i]t is implementing an inherent executive power.” In the normal course, the court noted, “Congress supplies the conditions of the privilege of entry into the United States.” However, “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power.”

Critically, the threshold decision to exclude—unlike the subsequent decision to deport—is subject to only the slightest form of review: “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” (This conclusion sounds in the doctrine of consular nonreviewability.) Though decided two years before Youngstown Sheet & Tube Co. v. Sawyer, the court’s analysis in Knauff embodies the characteristics of Justice Jackson’s first tier: because the President is acting with a combination of his own inherent powers, combined with the co-extensive powers delegated from Congress; judicial scrutiny is at a minimum.

I have long viewed Knauff and the argument concerning inherent power as critical to the government’s defense of the travel bans. Specifically, this precedent undercuts the need to reconcile complicated statutory schemes, and even delegation problems. It does not resolve questions about the Establishment Clause, but as I explained in March, this provision does not apply in the immigration context; in the nine months since I laid out this argument, no one has responded to it.

There are two possible reasons to hesitate before relying on Knauff. First, there was only a four-member majority. Justices William O. Douglas and Tom Clark recused; Justices Felix Frankfurter, Hugo Black, and Robert Jackson dissented. Decisions that only garner four votes are not considered precedential, though the court has cited Knauff favorably over the decades, without any caveats. Second, Justice Jackson—whose wisdom we all turn to when considering the separation of powers—dissented. Indeed, his dissent did not even countenance that such an inherent power exists. This silence presaged his derision of the “vagueness and generality” of “inherent” powers in Youngstown two years later.

If Knauff remains good law, however, it provides the rule of decision for Hawaii v. Trump. Indeed, it explains why the Ninth Circuit’s invocation of the non-delegation doctrine has to be wrong. The panel concluded that the government’s reading of § 1182(f) “would effectively render the statute void of a requisite ‘intelligible principle’ delineating the ‘general policy’ to be applied and ‘the boundaries of th[e] delegated authority.’” Had Congress enacted such a statute in the domestic context, I would be inclined to agree with this argument. The court’s analysis, however, completely ignored Knauff’s discussion of the non-delegation doctrine: Congress cannot delegate the power to exclude, because it is an “inherent in the executive power to control the foreign affairs of the nation.” Had the Ninth Circuit cited this discussion, there would be no need to apply the avoidance canon to the government’s reading of § 1182(f). Moreover, the panel’s citation to Justice Anthony Kennedy’s concurring opinion in Clinton v. City of New York—a not too subtle appeal to garner the swing vote—is inapposite. Unlike Congress’s attempt to give the president the line-item veto, there is already a “[c]oncentration of power” over exclusion by virtue of the president’s oath of office.

“Exceptional Circumstances”

The Ninth Circuit panel, perhaps aware of the fraught ground of ruling on the president’s Article II powers, included an important caveat in a footnote:

In holding today that the President lacked independent constitutional authority to issue the Proclamation, we again need not, and do not, decide whether the President may be able to suspend entry pursuant to his constitutional authority under any circumstances (such as in times of war or national emergency), as the Proclamation was issued under no such exceptional circumstances.

It has come to this. Federal judges can now decide what “exceptional circumstances” are needed to justify the president’s exercise of an inherent Article II powers. This is a astonishing assertion. To quote again from Justice Jackson’s Youngstown concurrence, where the president’s power is “exclusive,” it “disable[es] the Congress from acting upon the subject.” Ditto for the courts.

This footnote’s reference to “times of war or national emergency” also implicates another lingering issue that I flagged in May:

Are we at war? This argument raises the question of whether the 2001 and 2002 Authorizations for Use of Military Force, which both the Obama and Trump administrations have used to fight ISIS, provide support for the president’s terrorism-based travel ban. (To be precise, I do not think either AUMF provides authority to cover conflicts with ISIS). This is yet another reason to read the statues to avoid reaching these thorny constitutional questions. The Supreme Court has shied away from this question, as reflected in its decision to reverse Justice Douglas’s holding in Schlesinger v. Holtzman that the bombing runs in Cambodia were part of an undeclared, unconstitutional war.

That is not a question the courts should want to approach, yet the Ninth Circuit’s faux passive virtue demands that inquiry. That is, if the president asserts this inherent executive power over exclusion, he will now have to persuade an Article III judges that “exceptional circumstances” exist.

To prove its point, the Ninth Circuit stressed that entry bans imposed by Presidents Carter and Reagan, in response to crises in Iran and Cuba, respectively, may have been illegal. Rather than working from the premise that they were lawful, and distinguishing them from President Trump’s policies, the judges would only say that those “outlier” actions were “never challenged in court and we do not pass on their legality now.” (During oral arguments in the Fourth Circuit, counsel for the ACLU contended that those entry bans, which no one even thought of challenging, were in fact unlawful.) Instead, the Ninth Circuit suggests a new limit exists on presidential authority: “we need not decide whether a President may, under special circumstances and for a limited time, suspend entry of all nationals from a foreign country.” The court does not explain where it derives these limitations from.

Consider a hypothetical: during the Iranian hostage crisis, an American citizen brings suit, challenging the denial of his Iranian mother-in-law’s entry. Can you imagine a federal judge asking a lawyer from the Carter administration how much longer the President planned to deny entry to Iranians? Or when new visas would issue to Iranians? Or whether the circumstances were “exceptional” enough to justify this form of nationality-based discrimination? Hindsight is 20/20, but the hostage crisis could have endured much longer than 444 days. The Ninth Circuit’s framework would require such inquiries.

I doubt this position can garner more than two votes at the Supreme Court. There is a far more likely resolution for this case.

A Saving Construction

Earlier this month, I made a prediction of how the Supreme Court will resolve the constitutionality of the travel ban. In light of the Ninth Circuit’s decision, I am going to double down:

Allow me to explain in more than 280 characters.

Unlike Travel Bans 1.0 and 2.0—which only concerned the denial of entry—version 3.0 “effectively bars nationals of the designated countries from receiving immigrant visas.” This latter power is not within Article II, but falls squarely within Congress’s Article I power over “naturalization.” In other words, the inherent power to exclude cannot resolve the entire case. Thus, the court must consider 8 U.S.C. § 1152(a)(1), which prohibits nationality-based discrimination with respect to the issuance of immigrant visas. (The executive branch can discriminate on the basis of nationality with respect to non-immigrant visas, such as tourist visas.) The provision has two subparagraphs:

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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. (B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Subparagraph (a) provides a basis for the Ninth Circuit’s ruling. The panel, however, does not even acknowledge subparagraph (b). I explained the significance of subparagraph (b) in February:

Third, subparagraph (B) seems, at least based on my own reading, to allow the Secretary to adopt “procedures for the processing of immigrant visa applications” that could explicitly be based on national origin. That is, subparagraph (B) states that subparagraph (A) “shall [not] be construed to limit” the Secretary’s authority. Some have argued that reading subparagraph (B) in this fashion should render (A) a nullity. Hardly. The general policy is that visas should be issued without concern for nationality. But when the Secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality. To modify my earlier hypothetical, following a declaration of war against country X, it would be unconscionable to tell the Secretary that he cannot cease issuing visas to nationals of that country. Again, this would be a facial form of nationality discrimination. This reading is buttressed by 1182(f), which gives the Secretary the ultimate trump card: deny entry to an alien who has a validly issued visa based on national security concerns. The greater power to deny entry includes the far lesser power to deny a visa.

The government has now advanced a very similar argument in its briefing to the en banc Fourth Circuit:

Finally, even if the district court were correct that Section 1152(a)(1)(A) would otherwise forbid withholding immigrant visas from aliens whose entry was suspended, Section 1152(a)(1)(B) confirms that Section 1152(a)(1)(A) does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.” The means by which the Secretary of State implements the Proclamation’s entry restrictions—i.e., by withholding visas from aliens who are not eligible for entry—constitutes a “procedure[]” within the meaning of Section 1152(a)(1)(B). (p. 39)

There is nothing novel about the government’s reading of subparagraph (b), under which the Secretary can impose a “procedure[]” that allows the denial of visas to aliens from certain countries, “notwithstanding” the fact that this amounts to facial nationality-based discrimination. In 1996, stalwart Deputy Solicitor General Edwin Smiley Kneedler explained to Justice Sandra Day O’Connor that the “procedures” language could countenance nationality based discrimination:

As we point out in our brief, when Congress enacted this provision in 1965, it had long been the policy of the United States before then and since then, for example, to adopt special procedures for security purposes for aliens from particular nations, from communist bloc countries for a while, and as the... there's a declaration cited at page 17 of our ... of the petition that describes that history and describes what was before Congress in 1965.

What if you are not convinced that this is the best reading of “procedure[]”? What if you are convinced that under this reading, the exception would swallow the rule? What if you are convinced this reading runs afoul of the major question doctrine, and squeezes an elephant into the proverbial mousehole? What if you are convinced that this reading would frustrate “the INA’s finely reticulated regulatory scheme governing the admission of foreign nationals”?

Enter the saving construction: even if this is not the best reading of subparagraph (b), it is the preferred reading to avoid running headlong into the difficult constitutional questions about the President’s inherent Article II powers to exclude and whether the proclamation gives rise to a violation of the non-delegation doctrine. Subparagraph (b) provides the court with a textual hook to support the Proclamation, and stay far, far away from the Article II powers. This is my prediction of how the court resolves the statutory arguments advanced by the Ninth Circuit.