On Wednesday night, Judge Derrick Watson of the U.S. District Court for the District of Hawaii ruled in favor of plaintiffs requesting to convert the original temporary restraining order he issued in early March to a preliminary injunction. While we wait for a final determination on the merits, the preliminary injunction will halt implementation of Sections 2 and 6 of President Trump’s second executive order banning entrants from six primarily Muslim countries and all refugees, respectively. Although the relief is fairly circumspect, it begs the question: does this ruling foreclose future executive actions shutting down the entry of a class of aliens?
In part, the decision unearths a new judicial approach with respect to the executive’s power under INA 212(f) by applying broad constitutional jurisprudence to executive actions authorized by Congress. After multiple strikes, it seems that the Trump administration may never be able to use its 212(f) authority to exclude aliens.
INA 212(f) embodies the president’s previously unfettered power to suspend immigration of specific groups of people upon his finding that the admission of a particular group is detrimental to national security interests. Simply put, this provision allows the president to state that a group is detrimental to national security and suspend entry of whomever he chooses, for as long as he wants, based on whatever evidence he feels is sufficient, including no evidence.
In the past, by deferring to the judgment of the political branches, the Supreme Court established the plenary federal power to exclude non-citizens, essentially allowing Congress and the executive full and complete power over questions of national security, territorial sovereignty, and self-preservation. Essentially, action in these areas of law was shielded from judicial review, even if it discriminated based on race, nationality, or any other factor.
Except now. In a relatively unprecedented move, the court decreed that Establishment Clause jurisprudence does not end at ‘the Executive’s door,’ thereby undermining the plenary power espoused in 212(f), authorized by Congress.
Certainly, President Trump’s executive orders are facing a new level of judicial scrutiny that may have far-reaching effects on the executive’s plenary power in immigration. However, Judge Watson made clear that his decision does not foreclose future Executive action. Specifically, it leaves open the possibility that the president may issue a proclamation pursuant to 212(f) that suspends entry of a group of individuals for any reason. The Court reasoned that it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation, but gave no indication as to what it might take for it to be successful, or withstand judicial review.
The federal government appealed this decision in the Ninth Circuit, and a similar TRO injunction earlier this month to the Fourth Circuit; their opinions may shed some light on whether there was, in fact, judicial overreach, or whether we’re entering a new realm of plenary power scrutiny.