Judicial Piracy and Plunder of America's Immigration Law

"There are indications, though, that Watson's viewpoint may have been further influenced by his Hawaiian heritage and his long record of advocacy for immigrant rights and civil rights. While with a San Francisco law firm in the early 2000s, he devoted hundreds of hours to pro bono cases defending the rights of Mexican restaurant workers being held in slave-like conditions and to landlord-tenant disputes. The complaint filed by Hawaii's attorney general against the Trump travel ban contained an explicit reference to some of the most painful chapters in the islands' history--the Chinese Exclusion Acts and the imposition of martial law and internment of Japanese Americans following the bombing of Pearl Harbor. At the time, the US supreme court upheld the government's argument--similar to Trump's--that it had the executive authority to defend national security as it saw fit. But the court's ruling in Korematsu v United States has since been described as a "stain on American jurisprudence" and has been widely repudiated in federal court rulings if never explicitly overturned."

"The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation. In the United States, the power to exclude or to expel aliens is vested in the political departments of the National Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department is authorized by treaty or by statute, or is required by the Constitution, to intervene. The power of Congress to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien's right to remain in the country has been made by Congress to depend. Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system. The provisions of an act of Congress, passed in the exercise of its constitutional authority, must, if clear and explicit, be upheld by the courts, even in contravention of stipulations in an earlier treaty."

1. Due Process does not require judicial fact-finding.
2. Knauff: an alien wife of a U.S. citizen. Finding of court was that she was inadmissible and was excluded from entry. The Court classified her admission as a privilege rather than a right and characterized the exclusion of an alien as a fundamental sovereign act "inherent in the executive power to control the foreign affairs of the nation."
3. If entry would be prejudicial and alien is determined to be a danger then reasons can be kept secret as to why alien has been denied access.
4. "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." (p.47)

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1. In exclusion cases, the courts cannot retry the Attorney General's statutory determination that an alien's entry would be prejudicial to the public interest. Pp. 345 U. S. 210-212.
2. Neither an alien's harborage on Ellis Island nor his prior residence in this country transforms the administrative proceeding against him into something other than an exclusion proceeding, and he may be excluded if unqualified for admission under existing immigration laws. P. 345 U. S. 213.
3. Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes. Kwong Hai Chew v. Colding, 344 U. S. 590, distinguished. Pp. 345 U. S. 213-214.
4. The Attorney General therefore may exclude this alien without a hearing, as authorized by the emergency regulations promulgated pursuant to the Passport Act, and need not disclose the evidence upon which that determination rests. Pp. 345 U. S. 214-215.

(A) In general Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in-- (i) any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, (ii) any other unlawful activity, or (iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is inadmissible. [...] (i) In general An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible. (and now comes the big kicker_: (f) Suspension of entry or imposition of restrictions by President 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 as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline. In Roberto Saavedra Bruno, et al. v. Madeleine Albright The D.C. Court of Appeals said: " Administrative Conference of the United States, which had proposed the specific language enacted as s 702(1), explained that the courts would still refuse "to decide issues about foreign affairs, military policy and other subjects inappropriate for judicial action." 1 Recommendations and Reports of the Administrative Conference 191, 225. On the same subject, the Administrative Conference pointed out that "much of the law of unreviewability consists of marking out areas in which legislative action or traditional practice indicate that courts are unqualified or that issues are inappropriate for judicial determination." Id. [...] These considerations underlie the Court's long-standing recognition that "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952); see also Reno v. American-Arab Comm., 119 S. Ct. 936, 947 (1999). Though it may be "error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," Baker v. Carr, 369 U.S. 186, 211 (1962), it is nevertheless "not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).8 In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers' actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.9 For the greater part of this

"Here's the thing: No one should have been confused about "whether the president had lawful authority to [promulgate DAPA]." The president did not--but that's legally irrelevant. Obama's legal authority is not at issue in the case. Really. Truly. Not even a little bit. Obama did not take the legally relevant action; Secretary of Homeland Security Jeh Johnson did. It's a program of which he is the legal author and for which he, not the president, is legally accountable. Politically and institutionally, this is a critically important difference. Johnson inferred that he had the authority to exercise this program from statutes enacted by Congress. The Homeland Security Act of 2002, for example, explicitly charges the DHS secretary with "establishing national immigration enforcement policies and priorities." Other statutes suggest Congress approves of deferred-action policies. The arguments for and against the secretary's use of his powers are complicated and technical, but they are arguments about statutory authority, not Article II of the Constitution or the scope of presidential prerogative. Put simply, the question is whether Johnson is reading statutes properly."

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