Presidential Authority for Visa Restrictions (for Ukraine and Otherwise)

by Peter Spiro

President Obama issued an executive order this morning imposing entry bans on those responsible for actions that “undermine democratic processes or institutions in Ukraine,” “threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine,” or involve “misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine.”

Sec. 2. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).

The power to specify covered individuals is delegated to the Secretary of State.

Obama is acting under section 212(f) of the Immigration and Nationality Act, which gives the President a blank check when it comes to imposing entry restrictions:

 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.

Obama has used this power at least twice, both in the summer of 2011. He used the authority to ban the entry of serious human rights abusers with this proclamation. In the proclamation referenced in today’s executive order, he banned the entry of individuals subject to UN sanctions regimes. The latter is particularly interesting insofar as it appears to delegate immigration policy to an international organization, directly incorporating UN decisions into US law. In any case, the use of the 212(f) power is consistent with Obama’s orientation to maximally exploit delegated powers.

http://opiniojuris.org/2014/03/06/presidential-authority-visa-restrictions-ukraine-otherwise/

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