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-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Friday, February 3, 2017

The Congressional Report on the Executive Authority to Exclude Aliens Released Days Before Immigration Ban


On January 27 President Donald Trump signed an Executive Order, Protecting the Nation from Foreign Terrorist Entry Into the United States. Four days earlier, on January 24, the Congressional Research Service released its own report:  Executive Authority to Exclude Aliens: In Brief.

To those unfamiliar, the Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the Library of Congress, charged with providing the United States Congress non-partisan advice on issues that may come before Congress, including immigration.

Included in the report are in-depth discussions on the operation of sections of the Immigration and Nationality Act (INA) in the context of the executive power . Discussions of sections 212(f),  214(a)(1) and 215(a)(1) report on how the sections have been used by Presidents, along with relevant case law and precedents. Most interesting is the list of executive orders excluding some groups of aliens during past presidencies; the table allows readers to compare and contrast the limits of previous orders.

The report notes the large breadth of power the president holds in denying entry to aliens, “if [the president] finds that their entry would be detrimental to the interests of the United States, for such period as he shall deem necessary.” It also identifies potential challenges that could be made to such an order including: inconsistency with congressional intent, and the violation of international treaties or the First Amendment if the exclusion is based on religion. 

Anyone interested in learning the legal underpinnings of the recent immigration ban or is writing on the topic will find the report most useful.


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