By Mark S. Weiner
In a recent Niskanen center Publish, Matthew Fay provided some stimulating “preliminary thoughts” on libertarian approaches to foreign policy. In particular, and perhaps ironically for a libertarian, he argues for foreign libertarian relations in which skepticism of state power and support for individual freedom are closely tied to strong international political institutions.
In the spirit of such an old-fashioned theorizing, I would like to offer some preliminary thoughts on an aspect of American foreign affairs implicated by the Presidential Decree on Immigration and Refugees. In my opinion, the presidential decree highlights a broader jurisprudential tension that should be concerned with all heirs of the liberal tradition. Call it the conflict between the power of foreign affairs and individual freedom. This generation can be called upon to resolve this tension, and the recent decision from the Ninth Circuit to Washington vs. Trump can show us the way forward by showing us back to views on free speech and executive action articulated in the early 1970s. As Justice William O. Douglas wrote in his dissent Kleindienst v. Mandel (1972), “the control of thought does not fall under the competence of any branch of government”.
In practice, the judicial strength of the constitution has tended to weaken on the shores of US foreign policy. Faced with a questioning of certain aspects of the conduct of the president’s international relations, the courts have often sidelined themselves. As Kristie de Peña noted in a previous post of the Niskanen Center, the power in particular to exclude foreigners, an essential characteristic of the nation’s relationship to the world beyond its borders, has long been regarded as an incident of national sovereignty subject to political constraint alone. The foundations for this point of view were articulated over a century ago in Chae Chan Ping v. United States (1889); explored by Justice Sutherland in United States v Curtiss-Wright Export Corporation (1936); and given the postwar expression in cases like Knauff vs. Shaughnessy (1950), who points out that “the power to exclude foreigners” can not only be delegated to the President, but is also “”inherent in the executive department ”(emphasis added).
This is the tradition implicitly relied on by an attorney for the Department of Justice when she courageously argued for the decree before Federal District Court Judge James L. Robart in Washington vs. Trump. The tribunal, she argued, should essentially give the president unlimited discretion to exclude foreigners on any basis: “Because it’s a foreign matter… the tribunal doesn’t have the power to exclude foreigners on any basis. power to look behind [the president’s] determinations ”(see 37: 55-40: 05 of video recording).
There are many solid and practical reasons for this approach, as one would expect given its pedigree. Certainly, most reasonable people across the political spectrum, including judges, shudder at the idea that the courts can serve as a forum for discussing foreign affairs matters. Foreign affairs are a subject far beyond the institutional competence of the judiciary, and if courts were to regularly challenge foreign policy decisions, they would undermine the unified voice with which the nation must speak on the international stage.
Yet in the case of the power of exclusion, this view is particularly inappropriate, and thinking about why might help us think more deeply about what a libertarian foreign policy might mean. It could also help bridge the divide between foreign power and individual freedom. The reasons why extreme deference to the exclusionary power of the executive is inappropriate lie in the universal aspirations of the Anglo-American liberal tradition. This tradition views individual rights as natural facts of the world that governments must recognize rather than as gifts of generosity from the state. From a theoretical point of view, individual rights constitute the very reason for government: the state develops organically. out of our commitment to freedom.
Now, if it were to be imposed at the national level, a government classification of the kind at issue in the presidential ordinance would be contrary to the constitution of any reasonable jurisprudential position. The idea that the order is “neutral” does not pass the laughter test. By your exceptions you will be known – this is the result of Larson v. Valente (1982). Or to quote Justice Kennedy, writing in Church of Lukumi Babalu Aye c. Hialeah (1993), the executive order was “carefully handled” to target Muslims – which, after all, was a central promise of Donald Trump’s presidential campaign. Issued within our borders, the ordinance would quickly come under scrutiny. Indeed, it would likely be seen as so blatantly punitive in nature, so motivated by sheer animosity, that it might even fail a standard of review based on a rational basis.
As champions of individual freedom against governmental power, libertarians of all peoples should be repelled by this fact. If you think government action is wrong when the state imposes charges on the basis of religion without a very powerful justification, then the decree should leave you deeply troubled. In states truly founded on liberal philosophical principles, oppressive government action is bad no matter where it occurs.
But there is a less obvious reason why Libertarians should view the Executive Order as constitutionally offensive, and this is suggested by the legal theory articulated by Justice Francis Dooling, Jr., joined by Judge Wilfred Feinberg, in Mandel v. Mitchell, 325 F. Supp. 620 (EDNY 1971). The court’s opinion applied the free speech clause to limit executive power to exclude foreigners on ideological grounds. And in doing so, he imagines essentially strongly limiting the force of cases as Knauff vs. Shaughnessy (1950) in the context of the First Amendment. It is worth reading, if only because the Ninth Circuit clearly rejected the Justice Department’s extreme interpretation of Kleindienst v. Mandel (who reversed Mandel v. Mitchell on appeal) as absolutely prohibiting judicial review of the immigration order.
What I find particularly interesting in Judge Dooling’s opinion is that it bases the constitutional limits on the power to exclude not so much in the rights of the aliens concerned, but rather in the Public the interest of American citizens in a solid exchange of ideas. The First Amendment, writes the tribunal, “reflects the full maintenance by the people as sovereign over themselves of the right to free and open debate on political issues.” It seems to me that this reasoning also applies in the context of free exercise and establishment, and that it lends jurisprudential form to our political intuitions about why the order is so odious.
By this I mean that the executive order doesn’t just harm aliens, although that would certainly be enough to make it the abomination it is. There is every reason to object in the strongest terms when a foreigner holding a legitimate visa, let alone a green card, is refused entry to the United States primarily on the basis of his religion. .
But from a legal point of view, we all are diminished by the executive order – us as individual citizens and us as a nation. The ordinance repeals our right to freely meet people of different faiths and to live in the type of intellectually robust society created when religion provides no basis for the misuse of government power. The reason the Order has engendered so much outrage and sadness is that it strikes at the heart of what it means to be an American – it violated a conception of the Public interest expressed in decisions such as Red Lion Broadcasting v. FCC (1969). This understanding of national identity is as much at stake in order as it is of prejudice to others.
As I argued in a recent book, individual liberty and the public interest — and the government institutions that uphold that interest — are interdependent. The presidential decree emphasizes that individual freedom and the public interest are interdependent on a theoretical level, just as, according to Fay, individual freedom and the limits of state power are institutionally supported by our commitment to order. liberal international.
During a reading, Judge Anthony Kennedy in Nguyen v. INS (2001) pointed out his potential willingness to work through the tension between individual freedom and the power of foreign affairs in the context of naturalization. In this case, he writes, the Court “need not decide whether a lesser degree of scrutiny applies because the law [at issue] involves the power of Congress over immigration and naturalization ”, because the sex discrimination involved met the high standard of United States v. Virginia (1996) – that is, there might be a future case in which such a decision would be necessary. Perhaps the presidential decree provides for such a case. And the Ninth Circuit’s categorical rejection of the government’s interpretation of Kleindiest vs. Mandel directs us to one of the legal theories with which to base the challenge.
At the very least, no matter how the courts to decide its fate, the decree-law gives the opportunity to libertarians to clarify their reflection on the scope of the constitution and the ideals to which it gives voice. It is an opportunity to bring to the fore the ideals of individual freedom, in all contexts and on the basis of a deep conception of the public.
Mark S. Weiner is the award-winning author of Clan rule: what an ancient form of social organization reveals about the future of individual freedom and Lawless Americans: Racial Limits to Citizenship. He is professor of law at Rutgers University in Newark.