In response to the Supreme Court decision on June 26th to allow a limited version Trump’s travel ban to take effect, we are re-posting this piece from June 22, 2017.
Last week, the 9th Circuit became the latest court to rule against the Trump administration’s executive orders banning travel from six majority-Muslim countries. Trump’s order claims authority from the 1952 Immigration and Nationality Act’s (INA) Section 212 (f), which says the president can temporarily suspend alien entry. But the 9th Circuit ruling argues that the administration “exceeded the scope” of its authority — that it both failed to meet the standards to do so under this statute, and that the order discriminates based on nationality, which the 1965 INA prohibited.
Can we learn anything about this debate from the legislative history of the bill?
To understand the travel ban, we need to take the wayback machine to 1950. There we find that the original intent behind the statute was to give the president broad discretion over alien entry, including targeted discrimination.
In April 1950 Sen. Pat McCarran (D-Nev.), the powerful chairman of the Senate Judiciary Committee and its immigration subcommittee, introduced an omnibus immigration bill. Among other provisions, the bill proposed an unprecedented expansion of presidential authority to restrict alien entry, as explained in the bill’s Section 212(e):
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 be they immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.
For the next two years, opponents derided “McCarran’s Iron Curtain” bill for its blatant racial discrimination and expansion of executive power.
Congressional leaders such as Sen. Hubert Humphrey (D-Minn.) said this section proposed “extreme and extraordinary” presidential authority over alien entry, complaining that “no standards are established” for the use of this authority.
And yet that sentence remained intact through many revisions of the omnibus bill, becoming part of the 1952 INA.
The legislative history shows that this exclusion language originated in the work of McCarran’s immigration subcommittee.
The subcommittee took a narrow and obsolete provision from existing law and expanded its underlying idea into a presidential blank check. The old provision came from an immigration bill passed in 1907 and was focused narrowly on preventing aliens from entering the United States by traveling through other countries to evade U.S. restrictions. In practice, the goal was to prohibit laborers from Japan.
In its report on the omnibus bill, the subcommittee argued that the specific provision was obsolete. But the subcommittee noted that it would be adding new language in its place. The new language would grant the president the discretionary authority “to suspend any and all immigration whenever he finds such action to be desirable in the best interest of the country,” beyond the normal excludable classes of aliens such as criminals, paupers, anarchists and the mentally and physically infirm.
Unlike other long-standing legislation incorporated into the McCarran bill, this authority would not require war or proclamations of national emergency.
But why did McCarran include this language in the omnibus bill?
McCarran and his supporters never explained. But the legislative history suggests some specific reasons. McCarran and the subcommittee thought that existing law failed to protect the culture and security of the United States. Scholars such as Daniel Tichenor and journalist Michael Ybarra point to McCarran’s particular concerns about the threats posed by Jews and communists.
The subcommittee’s omnibus bill kept the 1924 national origins quota system, which limited immigration from southern and Eastern European countries. But after the war, a massive refugee problem threatened these restrictions. The 1948 Displaced Persons Act (DPA) had expanded access by counting refugee admissions against future national quotas – in other words, letting in more refugees from countries otherwise limited by reducing, in theory, how many could come from those countries in future years.
McCarran and the subcommittee had limited the DPA’s impact by adding measures such as restrictive eligibility dates, making it more difficult for European Jews to qualify for refugee status. President Harry S. Truman reluctantly signed the refugee legislation, observing that it “discriminates in callous fashion against displaced persons of the Jewish faith.”
Over the next two years, refugee supporters in Congress sought to remove these restrictions. McCarran worked to derail these efforts in the Senate. But by the spring of 1950, at the same time as the subcommittee was putting the finishing touches on the omnibus immigration bill, these efforts had failed. We can infer that McCarran’s failure was part of why the subcommittee included Section 212 (e) in the omnibus bill: to give a future president a way to stop refugees from coming in.
McCarran and the subcommittee were just as worried about communist subversion. They railed against alien entry, particularly from Eastern Europe and Russia, as expanding the communist threat to the United States. Communism was “an alien force,” the report noted, “an international conspiracy” that was infiltrating “our borders for the purpose of overthrowing the democratic Government of the United States by force, violence, and subversion.” The omnibus bill added categories for Communists and other subversives to the classes of aliens excluded from entry, no matter what country they were from.
But the subcommittee did still more to make sure “dangerous” foreigners, even those who weren’t immigrants, could be kept out of the United States. In hearings during 1949 and in the 1950 report, subcommittee members claimed that foreign government officials and representatives of international organizations could be a major security threat. The subcommittee gave the president the authority in the omnibus bill to establish “rules and regulations” to restrict the entry of even those at the highest diplomatic ranks, if they were “known” to be entering the country to pose a threat to the “public interest … welfare or safety.”
But what if they weren’t “known”? The sweeping language of Section 212 (e) would give the president yet another tool to keep out nonimmigrants, including all ranks of foreign officials and international organizations’ representatives.
Trump is trying to use 1950s tools meant to “protect” the United States from Jews and communists
In other words, Trump’s travel ban is doing just what McCarran envisioned in 1950: restricting foreigners from entering the country based on general anxieties about religion, ideology and national origin. But immigration law has changed a great deal since then — including, most notably, an end to the quotas limiting how many people could come from countries identified as less desirable.
The 9th Circuit argues that the administration has not met the standards to restrict entry under the INA. Furthermore, the court argues that presidential authority over entry does not include the power to discriminate. This debate will be resolved by the U.S. Supreme Court, should it decide to hear the case.
Richard Friman is Eliot Fitch Chair for International Studies, professor of political science, and director of the Center for Transnational Justice at Marquette University.