Trump says it’s time to deny entry to illegal immigrants. Can he? [UPDATED]

Philip Rucker and Dave Weigel, two of the Washington Post’s most incorrigibly biased anti-Trumpers, lead off their latest editorial thinly disguised as a news report this way:

President Trump on Sunday explicitly advocated for depriving undocumented immigrants of their due-process rights, arguing that people who cross the border into the United States illegally are invaders and must immediately be deported without trial or an appearance before a judge.

Trump’s attack on the judicial system sowed more confusion. . . .

Rucker and Weigel are among the confused. Either that or they are hiding the ball.

8 U.S.C. §1182(f) of the U.S. Code confers on the president the power to turn away immigrants at the border. It provides:

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.

Rucker and Weigel do not mention this presidential power. But its existence undermines their suggestion that Trump would be denying “due-process rights” if he decided to deny entry to immigrants without granting them a trial or an appearance before a judge.

Section 1182(f) says nothing about a trial or appearance before a judge. If the president decides that the entry of class of immigrants is detrimental to the interests of the United States, members of that class of immigrants have no right to enter and no right to use our judicial system.

Daniel Horowitz discusses §1182(f) and the case law surrounding it here. His main points are:

1. The criteria for exclusion [are] not based on “national security concerns” or “terrorism.” It’s anything that, in the determination of the president, would be “detrimental to the interests of the United States.” That includes public welfare, health concerns, values, attitudes, etc. Thus, in this case, where the surge has already created the worst drug and gang crisis in the history of the country, the president would be justified in invoking this power.

2. Just like the president has the authority to completely shut off immigration, he may impose any restrictions on entry even if he chooses to continue various forms of immigration. Thus, in order to abide by the Geneva Conventions on asylum, the president can condition any asylum claims on applying at a U.S. consulate in Mexico, not at the border – or turn them back immediately.

3. This is not the type of provision in which a court can demand evidence that the condition of “detrimental to the interests of the United States” was met. The delegation of authority was designed as plenary power. The courts have absolutely no authority to second-guess the president’s determination. That is up to Congress and the electorate. As a recent Congressional Research Service report observes, from the House report on the 1952 immigration bill that granted this authority: “The bill vests in the President the authority to suspend the entry of all aliens if he finds that their entry would be detrimental to the interests of the United States, for such period as he shall deem necessary” (H.R.RPT.1365, 82d Cong.,2d Sess., at 53 (Feb. 14, 1952)).

Citing United States v. Ju Toy, an old Supreme Court case, Horowitz adds that a person who comes to the country illegally is “to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries.”

The plain language of §1182(f) and the case law involving it notwithstanding, one can easily imagine certain judges second-guessinging a determination by this president that the “detrimental to the interests of the United States” has been met. Maybe some judges would find that the crisis of family separation the left has been screaming about is not detrimental to the interests of the U.S. More likely, they would demand that some other “solution” (i.e., catch and release) be employed.

Such judicial activism would amount to an attack on our system of government. President Trump shutting down the border in response to recent developments would be nothing of the kind.

UPDATE: Congress has also given the president “expedited removal” authority. It allows deportation of an illegal already here (as opposed to exclusion of someone abroad) without going before a judge.

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