Immigration Bans

An immigration ban is a categorical bar on entry—by nationality, region, or class of applicant—imposed by a sovereign government. Conservatives defend the power without apology: no foreigner holds a right to enter another country, and a nation that cannot decide who crosses its borders has surrendered the first attribute of sovereignty. The power’s exercise in any given case is a question of prudence; the power itself is not negotiable.¹

American law has recognized this for well over a century, from the Chinese Exclusion Act era through Trump v. Hawaii (2018), which upheld a presidential proclamation suspending entry from a set of countries whose governments could not or would not support American vetting.

Key Takeaways

• The Supreme Court’s plenary power doctrine, announced in Chae Chan Ping v. United States (1889), locates control over admission of foreigners in the political branches, largely beyond judicial second-guessing.
• Section 212(f) of the Immigration and Nationality Act (1952) authorizes the president to suspend entry of any class of aliens found detrimental to US interests.
• Trump v. Hawaii (2018) upheld Proclamation 9645 by a 5-4 vote, applying rational-basis review to the entry suspension.
• Conservatives treat bans as a legitimate instrument of national security and democratic self-government; critics see the 2017 orders as religious discrimination in neutral dress.

History And Context

Categorical exclusion is as old as federal immigration law itself. The Chinese Exclusion Act of 1882 barred Chinese labourers outright, and when Chae Chan Ping—a long-time San Francisco resident returning from a visit to China—challenged his exclusion, the Supreme Court ruled unanimously against him. Justice Stephen Field’s 1889 opinion grounded the power to exclude foreigners in sovereignty itself, holding that it belongs to the political departments and cannot be bargained away.² The Immigration Act of 1924 extended categorical restriction to a system of national-origin quotas that stood until 1965.

Congress codified a standing emergency power in 1952: section 212(f) of the Immigration and Nationality Act lets the president suspend the entry of any aliens or class of aliens whose admission he finds would be detrimental to the interests of the United States. Reagan invoked it first, in 1981, to suspend undocumented migration by sea, and again in 1986 against certain Cuban entrants; Carter had restricted Iranian visas during the 1980 hostage crisis under a neighbouring provision of the same act, and later presidents of both parties used the power dozens of times. In January 2017 President Trump invoked it against seven Muslim-majority countries; after two rounds of litigation and revision, the third version, Proclamation 9645, covered eight countries including North Korea and Venezuela. In Trump v. Hawaii (2018), Chief Justice Roberts wrote for the Court that the proclamation fell squarely within the president’s statutory authority and survived rational-basis review on the establishment-clause claim; the opinion also formally repudiated Korematsu.³

The Conservative Position

The conservative case begins where Field began: a political community exists only if membership in it is bounded, and the decision about who enters is the community’s to make through its elected branches. Entry is a privilege extended by the sovereign, not a right held by the applicant. From this it follows that courts owe heavy deference to exclusion decisions, particularly where national security is invoked—judges have neither the intelligence access nor the accountability to substitute their risk judgments for the executive’s.

Prudential arguments reinforce the constitutional one. Samuel Huntington argued that a nation is not merely an economy with a flag but a carrier of a particular culture, and that immigration policy is the instrument by which a democracy governs its own continuity.¹ Reihan Salam—himself the son of Bangladeshi immigrants—made the modern restrictionist case that lower-skill inflows strain assimilation and wage growth at the bottom, and that a confident country chooses its intake deliberately.⁴ A ban, on this view, is simply the sharpest point on a continuum of choices every nation makes: screening where cooperation from foreign governments makes screening possible, suspension where it does not.

Differing Positions

Critics answer that the 2017-2018 orders show the doctrine’s danger. The proclamation’s national-security rationale, they argue, was constructed after a campaign in which the candidate promised a Muslim ban in terms; Justice Sotomayor’s dissent in Trump v. Hawaii set the campaign statements beside the order and invoked Korematsu as the controlling analogy, not the repudiated one. Immigration scholars fault plenary power itself as a nineteenth-century artifact, born in the same era and reasoning as Plessy, that exempts one field of law from the constitutional norms governing every other. Economists note that categorical bans exclude students, doctors, and engineers along with any hypothetical threat, at measurable cost and with no demonstrated security gain over individualized vetting. And libertarians within the right dissent from Huntington’s premise entirely, holding that free movement of labour is continuous with the free movement of goods and capital conservatives otherwise defend.

References

1. Samuel P. Huntington, Who Are We? The Challenges to America’s National Identity (Simon & Schuster, 2004).
2. Chae Chan Ping v. United States, 130 U.S. 581 (1889).
3. Trump v. Hawaii, 585 U.S. 667 (2018).
4. Reihan Salam, Melting Pot or Civil War? A Son of Immigrants Makes the Case Against Open Borders (Sentinel, 2018).