Recently, the Ninth Circuit decides to ignore Supreme Court more than a half-century of Supreme Court precedent and require the United States to admit people from a list of countries that are either failed states (Somalia), or who in the midst of war (Syria), or who finance terrorists (Iran). The judges indicated that the Constitution forbids the government to discriminate based on religion, so that if the executive order does that, it is unconstitutional. The response of the government is that it does not discriminate because of religion.
The issue for the court is not one of wisdom — should the visa order have been vetted more carefully, drafted more narrowly, or allowed for more exceptions. We can agree that the suspension has flaws, but the issue for the judicial branch, as the Supreme Court has stated many times, is one of power, not wisdom. In granting visas admitting aliens, does the United States have the power to discriminate in a way that would violate the First Amendment if the issue did not include visas?
If we look at the decisions of the U.S. Supreme Court stretching many decades, there is one consistent answer, yes. That is surprising to many people only because they have not looked at the law. It is certainly true that the Supreme Court can change its mind, but to do that would require it to overrule a large number of cases. As for the Ninth Circuit, it has a tradition of ignoring Supreme Court precedent, so it is more difficult to predict what it will do.
Once aliens are here, they get all the constitutional rights of U.S. citizens, even if they came here illegally. But the situation is quite different when they are at the border seeking admission. Let us look at some of the cases.
In United States ex rel. Knauff v. Shaughnessy (1950), the United States excluded — without a hearing, without any due process —the alien wife (war bride) of an American citizen solely because the Attorney General announced that her admission would be prejudicial to the interests of the United States. The Court agreed the Congressional statutory scheme was constitutional, it authorized such action, and the law excluded any judicial review. The citizen could not bring his wife into the country and could not find out why she was excluded. “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is 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.” It added, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
Several years later, the Court decided Shaughnessy v. United States ex rel. Mezei (1953). Mezei, an alien immigrant, lawfully lived in the United States from 1923–1948 and then left for Hungary to visit his dying mother. On his return, armed with a visa issued by the American Consul in Budapest, he was denied entry on the “basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.” The Attorney General argued that his continued exclusion of the alien without a hearing was constitutional. The Supreme Court agreed: “It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional notions of due process of law. But an alien on the threshold of initial entry stands on a different footing.” The Attorney General permanently excluded the alien from the United States on undisclosed grounds. You don’t like the decision? It is disquieting, but don’t blame me: I’m only the messenger.
These cases focus on procedural due process, found in the Fifth Amendment. What of the First Amendment? Same result. A leading case is Kleindienst v. Mandel (1972). The Attorney General sought to deny a visa to an alien who supported “the economic, international, and governmental doctrines of World communism.” U.S. citizens argued that their First Amendment rights were abridged by the denial of Mandel’s request for a visa. The Court rejected the argument and said explicitly that it would not look at the reasons for the Executive’s exercise of discretion “nor test it by balancing its justification against the First Amendment.”
What if the United States discriminates because of sex? In Fiallo v. Bell (1977) the law granted an illegitimate child immigration preference by virtue of his relationship with his natural mother, but no preference to an illegitimate child seeking preference by virtue of his relationship with his natural father. So, the law discriminated based on sex and illegitimacy. The Court rejected the constitutional challenge.
The appellants argued that there was “double-barreled” discrimination, based on sex and illegitimacy — and the children had no control over the actions of their parents in conceiving them as illegitimates. Thus, they argued, the law violated “the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship.” The Court rejected that argument as well. The appellants then argued the Court should intervene unless there is “specifically and clearly perceived to pose a grave threat to the national security.” The Court rejected that as well.
Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Dale E. Fowler School of Law. He joined the faculty in 2008. Before that, he was University Professor and Professor of Law at George Mason U. and the Albert E. Jenner, Jr. Professor of Law, at the U. of Illinois. In 1973-74, he was assistant majority counsel for the Senate Watergate Committee. He is coauthor of a six-volume treatise on Constitutional Law, and a one-volume Treatise on Legal Ethics. His books and articles have been cited more than 2000 times by state and federal courts at every level, from trial courts to the U.S. Supreme Court, by law reviews, and by foreign courts in Europe, Africa, Asia, and South America.