The Travel Ban: A Legal Extra-legality

by Kathleen R. Arnold


At the end of the first week of Donald Trump’s presidency, I and many others, watched and read the news, horrified and mystified, as the president issued yet another executive order. This one essentially paused the refugee system, halted all immigration from Syria to the United States, and barred the re-entry of residents from certain countries—even those with legal permanent residency or other forms of legal authorization to live and work in the United States.  This order extended to those who were born in these countries but who currently reside in other countries.  For example, a Canadian professor born in the Middle East canceled his talk at the University of Chicago when he was told that he would be detained at O’Hare if he entered the country.  More broadly, individuals from the selected countries were refused passage on certain airlines and/or they were detained at the airport upon arrival.  Unfortunately, as I will explain, TSA agents are the frontline of immigration enforcement and they often broadly interpret the meaning of these sorts of orders.  With little clarification or planning from the president’s office, children, citizen families, green card holders and individuals asking for refugee status were all detained in airports like O’Hare. 

The response to these moves was inspiring and the best approach.  In an immigration system that is legal but which falls under the sovereign authority of the government, there is little transparency, almost no checks and balances, and essentially no rule of law, public protest is one of the only remedies to injustice.  In fact, the constant presence of civil society actors in these situations has aided groups subjected to Chinese Exclusion, others treated as ideological enemies during the McCarthy era, and others fleeing civil war in Central America in the 1980s, for example.  Today, protesters have effectively protected individuals and families in sanctuary churches.  In each case, protest was the only means by which pressure could be put on government agents.  Sympathetic journalists have also aided these causes.  There is no judicial review, no appeals, and because the detention system is a civil one, no criminal protections—protest opens a space of democracy in the nearly complete absence of institutional remedies.

The immediate intervention of lawyers’ groups in key cities was also the best response in a system that is almost wholly discretionary.  Just as border agents and ICE officers can use their discretion negatively to detain children, harass the elderly, and delay workers who hope to return to their jobs, lawyers can persuade and negotiate with them to use their discretion positively to reunite with their families, ensure their homes are safe, and to return to work.  As authors like Shobia Wadhia have discussed, prosecutorial discretion can be a tool for good and not just a means to break up families and victimize innocent people.  Added to these positive moves, a Federal Judge issued an order halting the detentions as violating immigration laws and norms.  More recently, the Ninth Circuit Court has blocked most of this particular executive order.  All of the individuals held the weekend of the travel ban were eventually released, but as Hannah Arendt has famously argued, none of this was because these individuals have “the right to rights”—instead, discretion could simply be an act of “charity.” 

My aim in this essay is twofold—first to discuss how we got here, in terms of presidential authority (the use of prerogative—that is legal and yet acting outside the bounds of normal law) and plenary power.  I feel like I need to do this after reading numerous posts and some editorials written by highly trained academics that are simply incorrect.  I believe that only when we understand this system can we appreciate what Trump has actually done that is out of the ordinary.  And only then will protest, legal aid, and a longer-term goal of making this system more bound to the rule of law and less discretionary and thus, arbitrary. 

Recent analyses of the travel ban included claims that the courts’ interventions were a “victory” (see this for example) and that continued implementation of the ban parallels the Nazi era; claims that we haven’t already been largely excluding refugees and regular immigration from certain countries since 9/11 (for example see this); and fears that the United States may “revive” indefinite detention (indefinite detention has been the norm since at least the 1990s and was only temporarily halted under Obama only to be revived more recently). Most of this is wrong in some way but it doesn’t mean that something bad didn’t happen.  I also read a compelling editorial about the illegality of Trump’s order based on an analysis of the 1965 Hart-Celler Act, which had notably equalized the formerly eugenic quotas in place since the 1920s.  To further confuse matters, there has been a dichotomous comparison to Obama.  A very small group of people has argued that Obama largely implemented the same sorts of policies more quietly while a very large group of people has mostly deified Obama, ignoring his legacy as “deporter-in-chief.”  While each statement may have some truth to it, they largely misunderstand two core concepts shaping immigration policy today: prerogative power and plenary power. 

~prerogative power

While each of these terms has a much longer and more complex history than I can discuss here, in the case of immigration policy, they are interestingly intertwined.  In the history of political theory, John Locke is an important figure in understanding what prerogative power is—the use of a discretionary power unbound by precedent and immune from checks and balances (except after the fact) for the “public good” and sometimes in accordance with the spirit of the law but often outside of the law.  The use of prerogative is both legal, in that it is authorized, and yet it operates as discretion and thus, it is not bound to precedent.  Prerogative power can be exercised bureaucratically and be incredibly rule-bound, with accompanying paperwork, thousands of files, norms and even precedents but it is also lawless in important respects. 

The use of prerogative today by presidents exists in the form of pardons, signing statements (when the signing statements are used to challenge the law), and executive orders.  At the beginning of U.S. history, the office of the presidency was not particularly strong.  Famously, Abraham Lincoln expanded the power of the president during the Civil War through his use of executive orders.  He did this in the context of civil war and for wartime necessity but was often attacked as a tyrant and dictator at the time.  His use of this prerogative power was often for positive reasons—to raise a national military where there had been none, to form a national economy and coin for the same reasons, and in the middle of the war, his Emancipation Proclamation changed the status of enslaved African Americans in ten states to legally free persons.  More negative instantiations of this power during this time were temporary suspensions of the writ of habeas corpus and the removal of Jews from some states.  While Lincoln’s use of prerogative is often framed positively—to protect people and to free them—there was no guarantee that other presidents would do the same.  FDR is viewed as the other president who, aside from Lincoln, used his prerogative power more than any other.  Like Lincoln, he exercised this authority most often to lift up the people, to expand the rights of workers and to more broadly include women and racial minorities in these schemes when private individuals would not have done the same.  After FDR, other presidents were more reticent about using this power, but the result was that the office of the presidency had expanded.  This trajectory was interrupted, however, after Nixon was impeached and there were moves to limit the authority of this office.  But the attacks of 9/11 superseded the fears of the unchecked power of a paranoid president and the use of executive authority arguably exploded at this time.  Indeed, what is forgotten is that because the attacks justified the use of executive authority, the president whose use of Executive Orders and signing statements (in challenges to the law), combined with free speech zones, exclusion zones, and a rather extraordinary use of eminent domain was greater than any other president in history was George W. Bush. 

This is interesting because Obama has been portrayed as using his executive authority excessively but Bush’s use of this power is roughly double in comparison to Obama’s use of this power.  What should also be noted is that Obama certainly continued undemocratic policies that violated international law, which had been established during the Bush Administration that detained asylum and refugee seekers and which detained and deported significant numbers of people based on their country of origin or minor criminal incidents that were not tolerated under immigration policy.  However, Obama also improved the situation of many foreigners by allowing deferred action for childhood arrivals (DACA), ending military style raids (conducting audits instead), and notably enlarging the basis for refugee and asylum petitions in ways that accord more with U.N. definitions and guidelines.  In particular, gender-based asylum cases are now screened by asylum adjudicators when this would have been unimaginable in the 1980s and early 1990s.  What is notable in comparing George W. Bush to Obama is the difference in how each president’s authority was portrayed.  While Obama’s moves were constantly scrutinized and challenged—and he often capitulated to these challenges even when he was in the right—Bush’s much more extensive use of executive orders combined with plenary power altered immigration policy, essentially merging it with anti-terror concerns, and made detention a central tool of immigration policy. 

Whether used positively—to adjust slaves’ status or to grant children in this country legal authorization to continue working and studying here—or negatively (as with the establishment of prisons for enemy combatants and “expedited processes” for many immigrants that lead to detention and deportation), the increased use of executive authority achieves two things:  it expands the office of the presidency and it expands the reach of a power that is not subject to constitutional scrutiny.  This power falls under the rubric of sovereignty, often dealing with foreign affairs, but is notable because it is exercised on domestic soil, essentially creating a dual system, one that is legal but extra-constitutional and the other, which is largely bound to the Constitution.  The increased use of the first type of power is also often the result of a crisis in Congress and it can signal a failure to persuade the public of the value of that policy.  Thus, while Trump has arguably abused his executive authority and bypassed the legislative process last week, the problem is that the Bush administration had expanded this form of power with little scrutiny or challenge.  If we do not want a dictator or king, we must limit the possibility of this power in all cases, we must demand proof that the measures are not preventive but are based on empirical realities, and we must ensure sunset provisions on all such measures.  The danger is not limited to foreigners but also citizens: this is because prerogative undermines the system that legitimates it through, among other things, ignoring or going against the law; imposing rule from a single source with no checks and balances nor division of powers; and by treating citizens as subjects. 

Karl Marx’s discussion of rights in “On the Jewish Question” illustrates how both inalienable rights and civil rights are easily withdrawn in times of crisis.  Marx notes that in capitalism, the right to property often remains during these crises but persuasively argues that this “right” is no right at all.  The preeminence of this right above all others serves as an ideological distraction to convince people they still are equal before the law but must put security and policing first.  As freedoms of speech and conscience are suspended, citizens of representative democracy become convinced that these measures are temporary and in the name of the common good.  To Marx and later to Arendt, this does not demonstrate the weakness of inalienable rights theorized by authors like Locke but their non-existence in the absence of citizenship. 

~plenary power

Plenary power can be defined by the dictionary for example as the “fullness” of powers, but in the United States, its historical peculiarity is important to note.  The establishment of plenary power can roughly be defined as the Supreme Court’s granting to the federal government the power of all foreign affairs, including the power to make war and peace, to make treaties, and to guide all matters relating to foreigners both outside the border and inside.  This power is legally authorized, notably by an institution that argues it has no authority in these matters (despite is century-long reauthorization of this power).  In this legal maneuver, the granting of plenary power to Congress and the executive helped to form the federal government and to reshape the office of the presidency.  Therefore, the establishment of the plenary power doctrine in the 1880s and 1890s did not clearly define an already existing set of institutions and powers but instead helped to create the authority of the federal government apart from so-called inalienable rights and Constitutional scrutiny.  In keeping with the bizarre granting of this power by the very body exempt from it, the plenary power doctrine has been a site of contestation rather than a clear and delineated set of powers exercised consistently, over time.  Nevertheless, the absence of pure systematicity or total coherence does not mean that it does not exist, as some authors have argued in the 1990s and at the turn of the 21st century. 

In brief, the plenary power doctrine—as it relates to immigration—was established in the Chinese Exclusion cases.  In these two cases (and other, related cases of the time) the Supreme Court settled the ambiguity of the Fourteenth Amendment, which had held that all “persons” residing on U.S. soil should be protected by the Constitution.  The term person, therefore, implied a less-than-citizen—someone entitled to legal protection but not able to exercise his/her power in positive ways.  As racism against African Americans began to extend to Chinese immigrants in the late nineteenth century, the question of personhood as provided for in the Fourteenth Amendment then left the status of a significant number of people completely undefined.  The establishment of plenary power in relation to Chinese individuals (and by extension all immigrants defined as racially, sexually and mentally unfit by eugenic standards) helped to settle the matter. 

                The Supreme Court’s decisions in these cases established the following:

a)      That all matters pertaining to foreign relations, including immigration, were in the sole hands of the executive and Congress

b)      That state and local authorities thus had no authority in these matters (this changed in 1996)

c)      That the Supreme Court was not authorized to intervene in these matters—by extension, this meant that non-naturalized foreigners had no Constitutional rights whatsoever (even if, in the anomalous cases that were tried over the next century, some foreigners were granted protections, this was a privilege rather than a right or guarantee) and, as Monica Varsanyi has put it, they were “non-persons” before the law

While these decisions did not reverse a previous decision—Yick Wo v Hopkins (1886) that protected Chinese individuals against a violation of Equal Protection—they distinguished between the types of cases deserving of scrutiny.  If the cases were considered immigration cases, the Supreme Court was not authorized to hear them but if the cases revolved around domestic matters (and the immigration status of the individuals involved was deemed secondary), they could.  As noted above, the plenary power doctrine was often upheld over the next century creating some disturbing power arrangements.  For example, in the Mezei case (a 1950s Red Scare case), the indefinite detention of a legal permanent resident was upheld based on secret evidence. In this case, a law-abiding man was captured for attempting to visit his dying mother and indefinitely detained at Ellis Island; similar to power dynamics today, Mezei was released from this detention only after media exposure of this case.  But his release did not guarantee anything positive for future immigrants who might also be indefinitely detained when mass detention was reintroduced in the 1990s.  In fact, the Supreme Court devised a disturbing term in deciding this case—entry fiction—that would later be applied to individuals living in a legal limbo in the United States from the 1990s onward.  Entry fiction held that even a law-abiding man with long-term ties to the United States, as was the case with Mezei, could be tried as if he had never entered the United States.  Thus, the “fictional” element of his case which could later be used to try individuals denied constitutional protections from the 1990s onward.  The creation of this term and its future use with Mariel Cubans (notably in Benitez v Mata and Clark v Suarez-Martinez) does not merely illustrate the technical difficulties of seemingly banal immigration cases but the creation of a type of status that suspends all other statuses.  The fact that it is nakedly fictional exposes the degree to which immigration policy can operate according to criteria that are different than constitutional criteria.  The risks of this type of status range from the denial of any long-term ties to this country, the erasure of one’s legal status, and the possibility of indefinite detention (not to mention being treated as if legally dead within detention centers).  This is an instance of how plenary power doctrine has allowed for highly arbitrary and yet legal power dynamics to guide immigration policy for over a century.  While less attention has been paid to this doctrine by political scientists, ignoring its importance gives a strikingly incomplete picture of immigration policy today. 

To give one example of this deficiency, while authors generally recognize the 1965 Hart-Celler Act as equalizing immigration quotas and thus removing the eugenic basis of immigration entry, the eugenic components of plenary power have not been removed at all and do not need to be if they are now justified in terms of national security.  Thus, ignoring the non-personhood of the plenary power doctrine when analyzing the 1965 changes leads to partial, if not misleading, policy interpretations.  Daniel Kanstroom’s distinction between the control over entry versus post-entry social control is helpful in understanding the different strands of power in immigration policy.  On the one hand there is the power of exclusion and entry, often exercised at the border (noting that the border has been expanded in the 9/11 era).  The fact that individuals from previously excluded countries could hypothetically enter the country from 1965 on does not challenge or undermine their non-personhood at the federal level after they enter.  On the other hand, post-entry social control involves the removal of foreigners who have committed some violation of a law that is connected to their entry.  As they function together, these immigration systems in turn are not merely instruments of immigration control but also enlarge discretionary power and sovereignty at the expense of the rule of law.  More broadly, as Kanstroom and others note, these measures foster and maintain public xenophobia. 

With the devolution of power by the federal government to state and local authority in matters of welfare and immigration in 1996, foreigners’ non-personhood was now extended to the state and local level in some important respects, even if today, the power is not absolute.  While states were often admonished by the Court to uphold all constitutional protections, based on the notion of federal preemption, the 1996 provisions have opened up two areas in which state and local authorities can now legally discriminate against immigrants.  It is only when this occurred that federally run detention centers could operate in states without violating the Constitution.

Today, immigrant detention spaces are marked by civil rights and human rights abuses precisely because foreigners caught up in this system are not “persons” per the United States Constitution nor “humans” per human rights norms as enforced in this country.  Deportation may appear to simply be a “free” ticket back to one’s home country but it is incredibly simplistic, if not ideological, to argue this.  The system leading to deportation is arbitrary and contradictory, even as the Morton memo of 2011 was supposed to guide federal enforcement to go after truly dangerous undocumented foreigners as opposed to children, grandmothers, parents and workers (all of which can overlap).  But unofficial “raids” continue to happen, even in sanctuary cities like Chicago and more often than not, children, teens, priests, parents and the elderly are targeted.  Why?  Because there is little to no constitutional scrutiny of these policies, much less their enforcement; because the legal status of immigrants has historically been interpreted as the opposite of citizen or even person; and because border sites and detention sites operate along sovereign and not democratic lines.  

While these power systems are complex, they are importantly interrelated and demonstrate how detention spaces often overlap with the criminal justice system and prison spaces.  Importantly, the immigration system is only “civil” to the degree that it suspends any rights, including criminal rights.  But the degree to which immigration is criminalized and individuals become existentially “illegal” overlaps with an approach to policing in which race, mental fitness, gender and socio-economic class are viewed as inherently criminal and worthy of being policed.  Order and security are placed above democratic rights, individual agency, and equality in importance and often undermine their very possibility. 

~democracy now: sí se puede

Considering the history of these two mutually informing powers helps us to see that while Trump’s executive order was perhaps authorized, it was undemocratic, racist, and mean-spirited.  It was legal in many respects but hypocritical—as Republicans criticized Obama and challenged his authority in the immigration context, arguing that use of the plenary power doctrine by a president was unprecedented and a gross usurpation of this power.  But Trump’s order is portrayed as authoritative and a way to clean house.  Trump’s connection between alienage and national security required no empirical proof but that is the problem with executive orders like this and the plenary power doctrine more broadly.  In the context of Nazi Germany, Hannah Arendt argued that it is better to be a criminal than a stateless person.  In understanding what occurred the weekend that the travel ban was implemented, we can now see that legal authorization to be in the United States or to travel here do not guarantee any rights per se.  Indeed, they were treated as Mezei once was during the McCarthy era—as if they had no legal status whatsoever and ignoring long-term ties established to and in this country.  Entry fiction took on a new and sinister meaning.  When foreigners were detained at our airports, they were essentially stateless as they entered a system based on secrecy, lack of checks and balances, and with little to no judicial scrutiny.  Asylum seekers were interrogated and detained and/or deported in contravention of UN guidelines on arbitrary detention of asylum seekers.  While the 1965 Hart-Celler Act did alter entry restrictions on allegedly inferior countries, according to eugenic pseudo-science the plenary power doctrine made anyone entering this country rightless at the federal level.  Essentially, Hart-Celler equalized the possibility of entry but did not transform the legal rightlessness of immigrants at the federal level as they established ties to this country. The 1996 and 2001 anti-terror laws have since broadened the definition of terrorism, moving further away from entry and residency based on performance of duties and the rule of law and closer to a system based on status and alienage.  Were Trump’s moves illegal?  Not really—Trump merely used the legal and yet extra-constitutional powers in the immigration system. 

As the 9th Circuit Court has just blocked the travel ban and the case could move to the Supreme Court, current gains should be viewed as momentary victories and bits of luck.  The government did not defend the travel ban adequately—they provided no proof that the seven countries identified in the ban posed any imminent threat and nor did they seem familiar with historical doctrines guiding immigration.  This particular district court is also considered one of the best in the nation for matters of immigration because of the strength of civil society groups and a particularly well-educated and active bar association in northern California.  If the case goes to the Supreme Court soon (at the beginning of 2017), a 4-4 split decision would nullify the travel ban, but in the future none of these factors can be counted on for sure. Trump would be more successful if he were to issue new, better-written executive orders than continuing any legal challenge of the current order. Trump’s new Supreme Court nominee would tilt the vote in the future and the Court has historically deferred to federal (presidential and Congressional) authority in matters of immigration.  

Knowing this, protesters are absolutely essential in a largely discretionary and secretive process.  TSA agents acting according to discretion again conduct interviews more professionally when outside groups put pressure on them.  This does not mean these agents should be harassed or threatened and nor does it mean that we should excuse them when they detain and handcuff a 5-year old boy, interrogating him with no adult present.  It means that we have so thoroughly criminalized foreigners that even a 5-year old can be treated as an enemy.  ICE agents similarly have been influenced by immigrant advocates’ calls, faxes and protests.  Because these agents have discretionary power, they can be persuaded to use it positively. The best evidence of the power of the grassroots is when an individual who has received her or his letter of removal enters a religious institution offering sanctuary rather than complying with the letter.  Although ICE agents could enter these sanctuaries, they have not thus far.  The community’s presence, religious protesters, and the media all serve a crucial role in creating this sanctuary space and thus far, ICE has respected this support (although they have recently apprehended individuals when they exit the institution).  While the results are not always positive, sanctuary efforts have pressured the police to rectify incomplete U-Visa paperwork and have influenced judges to grant a hold of removal in some cases.  Lawyers already know that they will be in this for the long-haul and so the one thing I would suggest to them is appreciating the value of protest as support for their efforts and a way to tell agents in this system that the public is watching.  As long as protesters do not interfere in cases, their presence is crucial to establish broader support, democratic vigilance, and comfort to those entering “the border” and to those who are detained. The power dynamics I have explained above indicate that reform is not the answer but a radical change in how immigration is conceived–this can only occur in the creative and more justice-oriented environment of the grassroots.  


About the Author: Kathleen Arnold teaches political theory at DePaul University in Chicago.  She is the author of four books, the latest of which is Why Don’t You Just Talk to Him? The Politics of Domestic Abuse.  She has examined prerogative power as it relates to immigrant workers more extensively in America’s New Working Class.  Thanks to Joshua Dienstag for comments and suggestions.  All errors are my own.

About the cover image: No Ban No Wall, Thursday evening rally against Trump’s “Muslim Ban” policies sponsored by Freedom Muslim American Women’s Policy – photo by Lorie Shaull via Flickr (creative commons).



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