Constitutionality of Travel Ban Debate

Max Baldi, 1L

On October 4, at an event co-sponsored by ACS and The Federalist Society, Professors Gerald L. Neuman and Josh Blackman conducted a debate on the constitutionality of President Trump’s travel bans. Professor Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law and the Co-Director of the Human Rights Program at Harvard Law School. He has written extensively on the constitutional implications of immigration law. Professor Blackman is an Associate Professor of Law at the South Texas College of Law. His most recent books focused on the constitutionality of the Affordable Care Act.

Professor Blackman focused on the president’s statutory and constitutional authority to exclude any class of aliens whose entry the president finds “detrimental to the interests of the United States.” Professor Blackman contended that the President’s statutory authority is bolstered by his inherent constitutional authority to conduct foreign policy and guard the nation’s security. Furthermore, Professor Blackman pointed to a line of Supreme Court precedent which stand for a doctrine of immigration exceptionalism, under which the courts grant the president extraordinary deference on immigration matters. He held up both Kleindienst v. Mandel and Kerry v. Din as supporting the notion that courts may only conduct a facial review of immigration decisions.

Professor Blackman criticized the Fourth Circuit’s willingness to consider President Trump’s campaign statements about Muslim immigrants. He argued that campaign promises are inherently unreliable. Professor Blackman distinguished between the three separate orders President Trump issued in January, March, and September in defense of the constitutionality of the travel ban. Professor Blackman argued that regardless of the problems in rolling out and implementing the January and March orders, the September order followed a formal, interdepartmental review of immigration screening information and should thus be entitled to a presumption of validity.

Professor Neuman, in contrast, pointed to the historical origins of the doctrine of immigration exceptionalism beginning with the Chinese Exclusion Cases. He argued the seismic shift in constitutional law following Brown v. Board of Education requires revisiting immigration exceptionalism. Professor Neuman contended Congress’ repeal of racial categories for immigration quotas in 1965 recognized that the modern era of constitutional law demands  some level of constitutional scrutiny for executive immigration policy. He argued that the travel ban was objectively unconstitutional: the travel ban, he said, makes no contribution to national security, but rather exists only to gratify President Trump’s Islamophobic supporters. In support of that argument, Professor Neuman noted the reference to “honor killings’ in the travel ban orders, which he believed portrayed Islam as violent and barbaric.

Professor Neuman disputed Professor Blackman’s division of the travel ban into three distinct orders each representing a distinct policy. Rather, said Professor Neumann, President Trump has had one policy which has subsequently been rephrased on several occasions. Additionally, Professor Neuman argued that the Kleindienst standard granting deference to “facially bona-fide” immigration actions is inherently contradictory, and that courts must look beyond the words of an order when there was evidence the order was not issued in good faith.

Professors Blackman and Neuman answered questions from students on the appropriate standards of review, the travel ban plaintiffs’ standing to sue, and the nature of an establishment clause challenge to executive action. The event provided a wide-ranging and critical examination of the constitutionality of President Trump’s travel bans for the packed audience of students.

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