Immigrants entering New York City disembark the S. S. Imperator (1913) | Bain News Service / No known restrictions
On the campaign trail in 2016, Donald Trump promised retribution for the San Bernardino Isis attack in December 2015: he would enact a ban prohibiting the entry of Muslims into the country. It was, unfortunately, one of the campaign promises he made good on.
In late January 2017, President Trump signed Executive Order 13769, limiting the flow of refugees admitted into the country and suspending entry entirely for foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In the beginning, the entry ban even included green card holders, but a later executive order, 13780, limited its application to legal US residents. The geographic scope of the ban, however, continued to expand over the course of Trump’s term in office. More than 700 travelers were detained and deported and more than 60,000 visas revoked.
If Trump is reelected, we can expect the reinstatement of travel bans and their likely expansion to other Muslim majority countries. Depending on the mood of a punitive president and a right-wing searching for scapegoats, the list could grow to target countries whose nationals make up sizable groups of asylum seekers and refugees, like Haiti, Cameroon, and El Salvador. Despite the pushback that Trump received the first time around, a travel ban remains an easy means for a president to restrict the rights of those considered racial outsiders.
Entry bans are not new in US history, and in fact they even predate federal immigration law. Hidetaka Hirota, in his book Expelling the Poor, describes how in the 1820s New York and Massachusetts, building upon colonial poor laws, developed policies which prohibited the arrival of destitute, mainly Irish, foreigners and deported existing residents to Europe, Canada, or other American states. These policies laid the foundations for later federal immigration laws established in statutes like the 1875 Paige Law, which banned entry to prostitutes and convicts.
The Chinese Exclusion Act of 1882 was the first ban directly targeting all members of a specific national group. Erika Lee, in At America’s Gates, described how the Act prohibited the immigration of Chinese laborers, with exceptions only for travelers, students, diplomats, and merchants. The Exclusion Act and subsequent laws also ordered the deportation of resident Chinese, revoked resident status to those abroad, and banned Chinese nationals from naturalization.
In 1889, the Supreme Court ruled favorably on the constitutionality of the Act in Chae Chan Ping v. United States. In that decision, the court upheld the policies of the US government by enshrining the “plenary powers doctrine”—that immigration policy, enforcement, and its related substantive and procedural rights are under the exclusive, original, and absolute authority of both Congress and the executive branch. The court even limited its own judicial review powers over the Federal Government’s discretionary determination to exclude and deport foreign aliens, a doctrine further upheld and reinforced by Knauff v. Shaughnessy in 1950.
The Chinese Exclusion Act served as a blueprint for following entry and immigration bans targeting nationals of certain countries or regions, like Japan (1907), East Asia and the Pacific (1917), and Southern and Eastern Europe (1921). This precedent even extended to political dissidents under the so-called Anarchist Exclusion Acts of 1903 and 1918, which enabled the deportation of anarchists, communists, labor organizers, and other “undesirables.” All of these laws were driven by contemporary nativist and eugenicist anxieties regarding criminality, security, and foreign ideology.
This trajectory of restriction and exclusion culminated in the passage of the Immigration Act of 1924, which provided that no alien ineligible to become a citizen could be admitted to the United States as an immigrant. The act barred entry to Asians, Pacific islanders, and some Middle Eastern migrants, and set a total immigration quota of 165,000 for countries outside of the Western Hemisphere. It even established the earliest version of a national Border Patrol, deployed mainly at the southern border with Mexico.
The McCarran-Walter Act of 1952 ameliorated many such national origin and racial quotas, entry bans, and naturalization ineligibilities, and most would be removed altogether by the Immigration Act of 1965. Nevertheless, section 212(f) of McCarran-Walter enabled the President to suspend entry or impose restrictions to: “any aliens or any class of aliens” whose entry he determines to be “detrimental to the interests of the United States.” In doing so, the act’s main objective was to allow the executive to ban Communist Party members, sympathizers, and others from traveling to the United States because their political beliefs were considered “detrimental to United States interests.” Its mandate was later limited, however, and a 1965 amendment provided that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
Section 212(f) was used at least two times in the twentieth century. Following the Black September attacks at the Munich Olympics, the Nixon administration’s Operation Boulder (1972–74) imposed a blanket restriction and rejection of travel visas for nationals of Arab countries, and the surveillance and monitoring of up to 150,000 foreign Arabs and Arab Americans in the US. And after the 1979 Iranian hostage crisis, Jimmy Carter’s administration issued Executive Order 12172, canceling visas issued to Iranians and monitoring those already in the country through a registry. Eventually all 55,000 visas issued to Iranians were invalidated, though exemptions were provided for humanitarian reasons.
But the most immediate precedent for the 2017 Muslim travel bans was implemented by the Obama administration: the Terrorist Travel Prevention Act, signed into law in December 2015. It designated Iraq, Iran, Syria, Yemen, Sudan, Libya, and Somalia as areas of security concern and disqualified foreign nationals who benefited from travel visa waivers, making them ineligible to travel to the United States without a new visa.
Hawaii and a handful of other states refused to observe Trump’s travel ban, and the lower courts imposed and then upheld an injunction blocking its implementation. In Trump v. Hawaii (2018), however, the Supreme Court majority opinion upheld the constitutionality of the 2017 travel bans, declaring that they were within the presidential powers. The language of Section 212(f) of McCarran-Walter (also known as the Immigration and Nationality Act) was clear in giving the president broad authority to suspend the entry of non-citizens into the country, pursuant to his interpretation of American interests.
But how should such interests—and their need to be protected—be determined? The Establishment Clause to the US Constitution prohibits the government from enacting laws “respecting an establishment of religion, or prohibiting the free exercise thereof,” and the plaintiffs argued that the president’s multiple statements regarding Islam cast doubt on the government’s stated objective to be not specifically targeting religion. If religion was targeted intentionally, then strict scrutiny review applies, requiring the administration to more explicitly demonstrate that the order was necessary to protect American interests.
The court argued that the president’s travel ban was justified for national security reasons. Even though all banned nations had Muslim majorities, that fact alone, wrote the majority, “does not support an inference of religious hostility, given that the policy covers just 8 percent of the world’s Muslim population (220 million people) and is limited to countries that were previously designated by Congress, through the 2015 Terrorist Travel Prevention Act, and the Bush and Obama Administrations as posing national security risks.”
While President Biden rescinded the Muslim travel ban in January 2021, Trump v. Hawaii remains the law of the land, recognizing the executive branch’s authority to deny entry to foreign citizens. The implications are wider than any previous ruling legitimating travel bans. Unlike the Chinese Exclusion Act, Trump’s executive orders targeted all foreign nationals from specific countries without exception (if they were not dual nationals or already held a valid US visa), declaring and barring entire nations as potential threats. Trump v. Hawaii was the opportunity to limit the plenary powers doctrine in accordance with the 1965 Immigration Act. Instead, the ruling tacitly legitimized a racially biased immigration regime. The travel ban, in the end, constitutes a technology of power that regulates the exclusion of racialized and foreign populations and will continue to be considered legitimate until the court decides to erase the powerful vestiges of unequal treatment based on race.
