Strangely Enough, President Trump Can Use His Executive Power Over Immigration to Advance Human Rights and Battle Corruption
The legal battle over President Trump’s recent executive order has cast a spotlight on the president’s broad and potentially abusive powers over U.S. immigration laws. But it is worth remembering that this power can be used in many different ways, including in ways that the President’s critics would support. This past December, Congress delegated to the president broad discretionary powers to use his executive power over immigration to protect international human rights and to battle against corruption. These powers could advance the protection of human rights far more effectively than any Alien Tort Statute lawsuit. But a successful use of this new law would require President Trump and his critics to work together. And this prospect seems awfully hard to imagine right now.
Enacted as part of the FY 2017 National Defense Authorization Act and modeled on a similar law targeting Russia only, the “Global Magnitsky Human Rights Accountability Act” delegates to the President broad powers to impose targeted sanctions on foreign persons who commit or materially assist the commission of “gross violations of internationally recognized human rights” or “acts of significant corruption.” In particular, the President is authorized to deny or revoke visas to foreign “persons”, or simply deny them entry. A foreign “person” is specifically defined to include dual nationals. (The exercise of this power might sound familiar to those of us still wrestling with the impact of last week’s immigration order.)
The Global Magnitsky Act goes farther than visa denial, however, and also authorizes the President to block “all transactions in property” of a foreign person that are in the United States or are in the possession of a U.S. person. “Blocking” means that the property is frozen so that the owner cannot exercise any power or control over it despite still retaining title.
In order to impose such sanctions, the President simply needs to determine, based on “credible evidence,” that a foreign person either is “responsible” for a “gross violation” of internationally recognized human rights or acted as an agent for that person. The same “credible evidence” standard applies to sanctions for corruption, or “materially assisting” corruption.
Taken together, it is hard to read this law as anything other than a grant of highly discretionary or possibly unreviewable power for the President to block the entry and/or freeze the assets of any foreign national he thinks is connected to human rights violations or corruption. It might be unreviewable because courts are hesitant to review presidential exercises of a delegated power to impose sanctions, and even if it did, it would be nearly impossible for a court to find the lack of “credible evidence”.
Thus, President Trump has a new sweeping, possibly unreviewable power to deny entry into the U.S. and/or freeze the property of foreign nationals on the basis of human rights violations or corruption. Previously, the President would have had to invoke a “national emergency” under the International Emergency Economic Powers Act to impose such sanctions, and violations of human rights were not specifically authorized as the basis for imposing such sanctions. The Global Magnitsky Act thus hands President Trump a pretty powerful tool to support and advance the cause of international human rights. Will he use it?
It is hard to predict anything for certain about our new president, but the statute does build in some mild procedural encouragements for him to use this new power. For instance, the President must issue a report to four congressional committees (Senate Banking, Senate Foreign Affairs, House Finance, and House Foreign Affairs) reporting on sanctions he has imposed within 120 days of the law’s enactment (April 7, 2017). Moreover, the President must also respond within 120 days to any request by the chair and ranking member of one of the congressional committees to impose human rights sanctions. If the chair and ranking member of one of the House committees and one of the Senate committees sends him a request to impose corruption related sanctions, he must also respond within 120 days. The Assistant Secretary of State for Democracy, Human Rights, and Labor is authorized to submit the names of possible sanctions targets to the Secretary of State for review. Moreover, nothing in the statute prevents the President from acting on his own. Human rights NGOs, many of whom are the Trump administration’s fiercest critics, could also submit lists if they choose.
Even if President Trump uses this power, will it have any effect? How many “gross violators” of human rights or corrupt foreign government officials want to enter the U.S. or have property or assets here? It is hard to say for sure, but the number is probably more than zero. It might even be a lot more than zero. In any event, it is also worth noting that the sanctions imposed by the Global Magnitsky Act are almost as severe as any judgment that could be collected in a lawsuit brought under the Alien Tort Statute. Will petitioning the White House to impose sanctions replace ATS lawsuits? Probably not, but if used aggressively, the Global Magnitsky Act would have a much greater impact in support of international human rights than any five ATS lawsuits put together.
It is still too early to tell how this law will work in practice. But human rights and anti-corruption NGOs should be dusting off their political lobbying skills and start approaching the State Department and the chairs and ranking members of the relevant congressional committees with names. Since Maryland Senator Ben Cardin sponsored the Global Magnitsky Act and is the ranking member of the Foreign Affairs Committee, I bet he would be more than happy to submit some names to President Trump. Such lobbying is a lot easier than filing an ATS lawsuit, and has a much higher chance of having a real impact. But it will also mean petitioning an unpopular president to exercise his much vilified executive powers on their behalf. Will a future photo from the Oval Office depict President Trump signing a Magnitsky Act executive order while officials from Amnesty International and Human Rights Watch stand beside him to applaud him? As I said, this is awfully hard to imagine today, but stranger things have happened.