Oceander wrote:
"Every branch is subject to checks and balances from the other two branches."
"Subject to", perhaps, but not for every action.
Can either the Supreme Court or Congress reverse a presidential pardon, for example?
There are certainly other areas in which the prerogatives of the Executive have yet to be tested.
I agree with Smokin' Joe and ISailed above.
Time to "test the limits".
Per the INA,
Each year the President, in
consultation with Congress,
determines the numerical ceiling for refugee admissions. All he has to do is set that number as low as he sees fit. Congress consults, but does not act as the authority.
per the INA of 1952
The Act defined three types of immigrants: immigrants with special skills or relatives of U.S. citizens who were exempt from quotas and who were to be admitted without restrictions; average immigrants whose numbers were not supposed to exceed 270,000 per year; and refugees.
The Act allowed the government to deport immigrants or naturalized citizens engaged in subversive activities and also allowed the barring of suspected subversives from entering the country. It was used to bar members and former members and "fellow travelers" of the Communist Party from entry into the United States, even those who had not been associated with the party for decades.
It expanded the definition of the "United States" for nationality purposes, which already included Puerto Rico and the Virgin Islands, to add Guam. Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States.[5]
In the courts, which basically abdicated the issue of immigration to the political branches,
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)
(“The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”).
From the article here:
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers In the last two decades that population has grown dramatically, such that today one-third of all resident noncitizens are deportable at the option of the President—a fact that
functionally gives the President the power to exert control over the number and types of immigrants inside the United States.
As for the law,
The immigration laws of the United States are principally organized in the Immigration and Nationality Act (INA). The basic organization of the Act was first adopted in the INA of 1952, also known as the McCarran-Walter Act. See Pub. L. No. 82-414, 66 Stat. 163. Major
amendments followed in 1965, 1986, 1990, and 1996, but the basic organization of the
statute has remained largely unchanged.
See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009; Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 359; Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911. Today the Act is codified at INA §§ 101-507, 8 U.S.C. §§ 1101-1537 (2006).
(emphasis mine)To continue, in the matter of regulating immigration, from the same article (and I recommend reading it):
The Court first described the sources of immigration power in the
canonical case Chae Chan Ping v. United States. 130 U.S. 581 (1889)
Excluded from the country because of the new Act, Chae Chan Ping argued that the federal government had no authority to regulate immigration. Rejecting this challenge, the Supreme Court emphatically affirmed the power of the federal government to exclude noncitizens from the nation.
So we have established that (in this case, despite treaty), the Federal Government has the authority to say who comes in (or not). That doesn't boil it down to whom, though in that government has that authority, and in fact seemed to treat the Executive and Legislative branches as a unit, not as separate branches.
The twentieth century brought major changes to the Supreme Court’s separation-of-powers jurisprudence. The rise of the modern administrative state and the eventual demise of the nondelegation doctrine domesticated the idea that Congress could give extensive policymaking authority to the executive branch. The twentieth-century story of immigration law thus reflected how the strong conception of delegation present in the early immigration cases came to define both immigration law and
American public law generally.46 At the same time, however, the possibility of inherent executive authority continued to exert surprising influence over immigration jurisprudence.
That shift, plus the inherent power of the executive over who comes and goes (part of providing for the common defense), led to the concentration of power in the Executive branch.
In
United States ex rel.Knauff v. Shaughnessy 338 U.S. 537 (1950),The Court emphasized that no issue of unconstitutional delegation was present, because the exclusion of aliens is a fundamental act of sovereignty. And, for the first time, the Court explicitly suggested that the President possesses inherent power to regulate immigration. “The right to [exclude aliens],” the Court wrote, “stems not alone from legislative power but is
inherent in the executive power to control the foreign affairs of the nation.”
The plot thickens.
In the late 1930s, growers in the American South and Southwest began pressuring the government to admit temporary agricultural workers. (http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers p486)
The federal government was initially unresponsive. But in 1942, amidst World War II and the so-called “Manpower Crisis,” immigration officials formed a committee to study the possibility of launching a program to import Mexican workers.
Within a month, this interagency committee—which included Roosevelt’s War Manpower Commission, the Immigration and Naturalization Service, and the Departments of State, Labor, and Agriculture—had drawn up plans to admit the first installment of Mexican guest laborers.
>snip<
Importantly, Roosevelt established the program without first seeking consent from Congress (or initiating public debate, for that matter).
The administration turned to Congress seeking authorization, four months
after initiating the program, but the deal was done.
After some brief legislative wrangling, Congress officially approved the Bracero Program
on April 29, 1943, through the passage of Public Law 45. The fact that the Bracero Program operated for its first seven months as a bilateral agreement with no express congressional authorization suggests that President Roosevelt believed he had considerable leeway to craft immigration policy to address wartime labor shortages.
Congress authorized the admission of temporary workers through July of 1947, then extended the program through to the end of the year, with the provisio that the program be liquidated within 30 days.
That, as they say, should have been that.
But, no.
In fact, however, the admission of temporary workers stopped for only a short time. On February 21, 1948, the State Department arranged a new accord with Mexico and labor importation resumed. No statute authorized this new agreement, and Congress did not pass a statute in the following months as it had in 1942. Instead, the Bracero Program continued to operate from 1948 until 1951 without any statutory sanction—and in apparent direct contravention of a statutory command that the program be “liquidated.”
(http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers p489, emphasis mine)The executive branch administratively managed the movement of foreign labor into the US during that time.
In July, 1951, Congress authorized the program through 1953 (Act of July 12, 1951, Pub. L. No. 78, 65 Stat. 119.)
By that point, a number of concerns regarding the program’s implementation had arisen. In 1950, President Truman had established a Commission on Migratory Labor, whose final report documented the high levels of illegal immigration that had accompanied the Bracero Program and the depressive effect this immigration had had on the wages of U.S. citizen workers
The footnote to this, in its entirety, (
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers p 457-8
See James F. Creagan, Public Law 78: A Tangle of Domestic and International Relations, 7 J. OF INTER-AM.STUD. 541, 542 (1965). President Truman also expressed concern about the
failure of executive agencies to protect the guaranteed rights of the Mexican workers, observing at the end of the War that because of “the return to a normal peacetime labor market the danger of violations will be much greater than in recent years.” Message to the Congress Transmitting reorganization Plan 2 of 1947, 1947 PUB.PAPERS 229 (May 1, 1947); see also Special Message to the Congress on the Employment of Agricultural Workers from Mexico, 1951 PUB.PAPERS 389 (July 13, 1951) (“Both this Government and the Mexican Government have become increasingly concerned about violations of the contract terms under which Mexican citizens are employed in this country. We must make sure that contract wages will in fact be paid, that transportation within this country and adequate reception centers for Mexican workers will in fact be provided.”)Just fifteen minutes after President Truman signed Public Law 78, U.S. negotiators met
with Mexican officials to arrange a new bilateral agreement pursuant to the terms of the new statute. Together, the Migrant Labor Agreement of 1951 and Public Law 78 would set the official parameters for the Bracero Program until its termination in 1964
To continue,
The President rarely has made explicit claims of inherent authority in the
formulation of his immigration enforcement positions, though we do discuss one instance of such a claim in the next Section. But it is difficult to defend the Truman Administration’s extension of
the Bracero Program without reference to the assumption that the President possesses inherent authority over immigration policy
ibid, p491Later, four successive waves of Hatian refugees came to our shores, in conjunction with the regimes of "PapaDoc" and "BabyDoc" Duvalier in 1958 and 1971, respectively, with a constant flow of refugees fleeing those regimes by any means possible, including makeshift boats. After a host of various policies regarding the admission and parole of these refugees, often placing Florida government at odds with the Federal Executive policies, Ronald Reagan instituted a policy of interdiction at sea, using the US Coast Guard to prevent the refugees from reaching US shores. Subsequently, after the coup to oust Aristide, the GHW Bush administration set up a holding facility at Guantanamo Bay to process the refugees and vett claims of hardship or reprisal should they return. In early 1992, nearly 10,500 such were paroled into the US by the INS, but numbers swelled in May of 1992 to some 10,000 Hatians at sea, the camp was closed, and the policy returned to summarily returning those fleeing Haiti. Despite Bill Clinton using that policy as a campaign issue, citing 'heartless Republicans', His administration continued the practice until May of 1994.
Backing up to the grounds for such power,
On September 29, 1981, President Reagan issued a proclamation declaring that unauthorized migrants from Haiti had “severely strained the law enforcement resources” of the United States and “threatened
the welfare and safety of communities in [South Florida].”
132
Pursuant to his authority under § 212(f) of the INA, and “to protect the sovereignty of the
United States,” the President declared that the parole of unauthorized Haitians would cease and would be prevented by interdiction of vessels carrying such aliens.
133
In the memo that advised the President on his authority to issue this proclamation, the Office of Legal Counsel (OLC) in the Department of Justice cited authority delegated to the President by Congress, as well as the President’s inherent authority to protect the sovereignty of the country. First,
the memo emphasized that the President’s legal authority in § 212(f) of the INA was clear.
134
The provision establishes that 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. 8 U.S.C. § 1182(f).
(emphasis mine).
I will stop here, and heartily recommend reading the entire article.
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers for an interesting discussion of the development of the immigration authority of the Executive Branch, and specifically the authority of the President.
