Update: September 19, 9:07 am:

The latest news reports are that the FBI is looking for a naturalized US citizen, originally from Afghanistan, as a possible suspect in the September 17 explosive device attacks in New York and New Jersey. According to The Hill, Donald Trump has lost no time in attempting to exploit this latest event for his own purposes.



This makes my following comments about what legal rights, if any, Trump would have to bar entire classes of immigrants, or even individual immigrants, from the US by presidential decree if he becomes president even more pertinent.

My original post appears below:

If Donald Trump becomes president, could he reduce America's present complex immigration law system, which has been described as being second only to the tax laws in complexity, to a simple one of rule by decree?

The answer is yes, at least to the extent of 50 per cent. The president might not be able to decide by executive fiat which immigrants to admit to the United States, but he or she certainly has the power to exclude any immigrants or classes of immigrants that he or she determines to be "detrimental to the interests of the United States".

INA Section 212(f) provides, in relevant part, as follows:"

(f) Suspension of entry or imposition of restrictions by the president - Whenever the president finds that the entry of any aliens or 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 of time 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."

It is is hard to imagine any power that could be broader than this. One might argue that the above provision could not be used to exclude individual immigrants who might attract Trump's ire for any reason.

For example, former Mexican president Vincente Fox, whose scathing attack on Trump as a potential Latin American style dictator was reported in the Washington Post on September 13 (link to be provided) would probably not be very high on Trump's list of visitors or immigrants who who would be welcome in the US, judging by the comments that Trump has made against so many of his American critics as "losers", "mediocre", "not very bright", "crazy", etc.

If Trump were to order that Fox should be refused a visa under the above INA provision, could Fox argue that this law applies only on "classes of aliens" , not individuals seeking admission? Well he might, but in what forum?

The US Supreme Court has made clear that foreign citizens do not have any constitutional right to seek admission to the US on their own behalf, and arguments that the rights of Americans are harmed by refusing admission to any given foreign citizen or citizens have not been welcomed with any great enthusiasm in that Court so far.

See Kleindienst v. Mandel (1972) and Kerry v. Din (2015).

Alternatively, Trump might deny Fox (or any other foreign citizen who speaks out against him) admission to the US on the grounds that the person belongs to a "class" of immigrants who do not "respect" America (i.e. its president, Donald Trump) or "American values", i.e. whatever Trump wants to say or do.

Arguably, there might be a precedent for this in Trump's own August 31 Phoenix immigration address in which he proposed to bar anyone who doesn't support American "values" from entering the US.

But a more apt precedent would be in the actions of certain rulers in countries other than the US (and for whom Trump has had at least some kinds words), such as Russia's Vladimir Putin, Nortn Korea's Kim jong Un and Saddam Hussein of Iraq, all of whom have made clear that they do not welcome dissenting voices.

However, I do not want anyone to misunderstand me. My concern about what i see as a possibility that Trump might use Section 212(f) to rewrite our immigration laws by personal decree is not limited to whether or not he might choose to ban certain individual immigrants who might rub him the wrong way, as in the above example.

A much bigger concern is whether Trump might use this section to justify his proposed Muslim ban, thereby holding over a billion members of a major world religion responsible for a few despicable terrorist acts (including the latest NYC/NJ attacks this past weekend which are now under investigation as possible terrorism by an alleged suspect born in Afghanistan - see my update above).

But, under INS Section 212(f), the president would have even greater
power than anyone has imagined. For just one example, suppose Trump, who has already announced his intention to abolish legal H-1B work visas and labor certification green cards, decides to use this 212(f) to do so?

A lot easier (for him) than going through Congress, which would now become irrelevant.

Or suppose, taking advantage of possible suspected terror attacks such that those now under investigation in New York and New Jersey, Trump cuts off all immigration, except possibly from Europe, where his wife and grandparents came from - in a return to the spirit of the bigoted 1924 "national origins" Johnson-Reed immigration act, in order to please his white supremacist followers?

Would this be impossible? Not if one pays close attention to Trump's August 31 Phoenix speech in which, by clear and obvious implication, he criticized the 1965 immigration reform law which abolished the "Nordics only" quotas of the 1924 immigration law.

Moreover, if Trump (or any future possibly authoritarian chief executive) gains the power to rewrite our immigration laws by executive diktat, will the rights of American citizens be safe from being taken away by the simple stroke of a presidential pen?

To be continued in a forthcoming post.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing immigration law, most of this time concentrating in H-1B, labor certification, and other skilled and professional work visas and green cards, for more than 35 years. Roger's email address is algaselex@gmail.com