— Donald Trump, speech in reaction to Orlando shootings, June 13, 2016
“The president has the right to ban any group or anybody that he feels is going to do harm to our country. They have an absolute right, Howie. And so the president of the country has the right to do this.”
— Trump, interview on Howie Carr radio show, June 13, 2016
We fact-checked many claims from Trump’s and Hillary Clinton’s dueling speeches after Orlando, but this one called for a deeper look — especially after he repeated it in a subsequent interview.
The short answer here is: Trump is correct that the president has broad powers to deny admission of people or groups into the United States. But the power has not been tested in the way that Trump proposes, and how we got there is a fascinating story of changes in attitudes toward various groups of foreigners throughout American history. Let’s dig in.
If Trump is elected president and follows through with an immigration ban on Muslims (or any other group of people, for that matter), he can do so by asserting powers under the United States Code and the Immigration and Nationality Act of 1952, which is the nation’s main immigration act.
Under Title 8, Section 1182 of the U.S. Code, the president has authority to use a proclamation to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary. This provision was included in the Immigration and Nationality Act of 1952.
Such presidential proclamations already exist, and they were made out of foreign policy or national security concerns. For example, President Obama issued a presidential proclamation in 2011 suspending the entry of “any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in” war crimes or other violations of humanitarian law. That means the State Department has authority to block someone from getting a visa if they are found ineligible under that criteria.
“The immigration law was designed to give as much discretionary authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review those decisions,” said Matthew Kolken, an immigration attorney.
While Trump has focused on Muslims, it was a fear of communists that drove Congress to give this power to the president over six decades ago. President Harry S. Truman vetoed the Immigration and Nationality Act of 1952 — and in a lengthy veto statement, he cited concerns about broad powers being granted to the executive branch, even to “minor immigration and consular officials.”
Truman wrote in his veto statement: It repudiates our basic religious concepts, our belief in the brotherhood of man, and in the words of St. Paul that “there is neither Jew nor Greek, there is neither bond nor free …. for ye are all one in Christ Jesus.”
But Congress overrode Truman with a bipartisan, veto-proof majority. This is an important distinction to note, as some Trump supporters now claim that a Democratic president and a Democratic-controlled Congress approved this law.
What rights do those deemed inadmissible have to due process, or to practice religion or speech? The Supreme Court has ruled that people outside the United States don’t have constitutional rights. Further, the court ruled that Congress can decide who can and can’t enter the country, and how much immigration authority to delegate to the executive branch, said William Stock, immigration attorney and president-elect of the American Immigration Lawyers Association.
And over the past 130-plus years, the United States through legislation has blocked large swaths of people from entering the country. (See: Chinese Exclusion Act of 1882, or the 1924 Immigration Act aimed at immigrants from Southern and Eastern Europe)
Citizens who wanted to hear from foreign scholars barred under ideological exclusions in the Immigration and Nationality Act of 1952 made “First Amendment claims to say it should be illegal for the president to bar people from the United States just because of beliefs that they held, and freedom of speech they wanted to express,” Stock said. But “in most cases, the Supreme Court said outside of the United States, the president can do what he wants as a matter of foreign policy.”
Interestingly, the authority that Trump invokes is the flip-side to Obama’s use of his broad authority to choose not to deport large groups of people, and consider them eligible to be in the United States through the deferred action program. Trump is proposing to use the same type of broad presidential authority — but using it to limit, rather than expand, immigration. Immigration attorneys we consulted said the power has not been applied as broadly as Trump proposes.
Still, this does not mean Trump would have “absolute” authority. That’s good news for lawmakers on Capitol Hill such as House Speaker Paul Ryan (R-Wis.), who does not support Trump’s proposed Muslim ban. With a veto-proof majority, Congress can decide to rewrite the law to take away or limit the president’s authority under the Immigration and Nationality Act.
The Trump campaign, as usual, did not respond to our request for explanation.
The Pinocchio Test
For once, it seems Trump bothered to look up the facts — a refreshing change for us at The Fact Checker. But his claim does not qualify for the coveted Geppetto Checkmark. Trump characterizes this power as an “absolute right,” which conjures the image of a Roman emperor giving a thumbs-up or thumbs-down at the U.S. border. But there are some restrictions he could face as president, from Congress.
Under previous presidents, certain groups of people (such as those who committed war crimes) have been banned from the country. People with certain ideologies (such as communism) have been banned as well. But Trump suggests banning nearly a quarter of the global population, or more. The authority that Trump invokes has not been tested in a way that Trump proposes, and Congress could act to nullify his actions, even over his veto.
These caveats earn Trump One Pinocchio.
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