{
  "id": "R46142",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R46142",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 612255,
      "date": "2019-12-30",
      "retrieved": "2020-01-02T13:30:43.855389",
      "title": "The Power of Congress and the Executive to Exclude Aliens: Constitutional Principles",
      "summary": "Supreme Court precedent establishes that inherent principles of sovereignty give Congress \u201cplenary power\u201d to regulate immigration. The core of this power\u2014the part that has proven most impervious to judicial review\u2014is the authority to determine which non-U.S. nationals (aliens) may enter the United States and under what conditions. The Court has also established that the executive branch, when enforcing the laws concerning alien entry, has broad authority to do so mostly free from judicial oversight. \nTwo principles frame the scope of the political branches\u2019 power to exclude aliens. First, nonresident aliens abroad generally cannot challenge exclusion decisions because they do not have constitutional rights with respect to entry and cannot obtain judicial review of the statutory basis for their exclusion unless Congress provides otherwise. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only satisfy a \u201chighly constrained\u201d judicial inquiry to prevail against the citizen\u2019s constitutional challenge. \nThe Supreme Court developed the first principle\u2014that nonresident aliens generally cannot challenge exclusion decisions\u2014in a line of late 19th to mid-20th century exclusion cases. These cases culminated in the 1950 decision United States ex rel. Knauff v. Shaughnessy, in which the Court declared that \u201cit 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.\u201d This rule forms the basis of the doctrine of consular nonreviewability, which in almost all circumstances bars nonresident aliens abroad from challenging visa denials by U.S. consular officers. But the rule set forth in Knauff applies with less force to decisions to exclude aliens arriving at the border. Aliens at the cusp of entry into the United States may be detained by immigration authorities pending their removal. Their cases can trigger habeas corpus proceedings for that reason and may also implicate complex statutory frameworks on judicial review.\nThe second principle, concerning exclusion decisions that burden the rights of U.S. citizens, has been the primary subject of the Supreme Court\u2019s modern exclusion jurisprudence. In four cases since 1972\u2014Kleindienst v. Mandel, Fiallo v. Bell, the splintered Kerry v. Din, and Trump v. Hawaii\u2014the Court has recognized that U.S. citizens who claim that the exclusion of aliens violated the citizens\u2019 constitutional rights may obtain judicial review of the exclusion decisions. Yet the standard of review that the Court applies to such claims is so deferential to the government as to all but foreclose U.S. citizens\u2019 constitutional challenges. In the most recent case, Trump v. Hawaii, the Court applied a \u201chighly constrained\u201d level of review to uphold a broad executive exclusion policy notwithstanding some evidence that the purpose of the policy was to exclude Muslims. \nThe Mandel line of cases reaffirms the unique scope of Congress\u2019s power to legislate for the exclusion of aliens. Exclusion statutes draw minimal judicial scrutiny even when they classify people by disfavored criteria, such as gender or legitimacy. With respect to the executive power, the cases reaffirm generally that, in the absence of statutory provisions to the contrary, courts play almost no role in overseeing the application of admission and exclusion laws to nonresident aliens abroad. However, the cases leave some questions about executive exclusion power unresolved, including whether the Executive has inherent, constitutional power to exclude aliens and whether U.S. citizens may bring statutory challenges against executive decisions to exclude aliens abroad.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": true,
      "formats": [
        {
          "format": "HTML",
          "encoding": "utf-8",
          "url": "https://www.crs.gov/Reports/R46142",
          "sha1": "d63fce424728d821c4de6e79f5ac3da860ab3509",
          "filename": "files/20191230_R46142_d63fce424728d821c4de6e79f5ac3da860ab3509.html",
          "images": {}
        },
        {
          "format": "PDF",
          "encoding": null,
          "url": "https://www.crs.gov/Reports/pdf/R46142",
          "sha1": "403764c50fc2e5b7c79ad5a7fd718e0c466dc14f",
          "filename": "files/20191230_R46142_403764c50fc2e5b7c79ad5a7fd718e0c466dc14f.pdf",
          "images": {}
        }
      ],
      "topics": []
    }
  ],
  "topics": [
    "Constitutional Questions"
  ]
}