Judge Jon S. Tigar of the U.S. District Court for the Northern District of California recently struck down a Trump administration policy barring asylum for those who do not enter through a legal port of entry. Tigar’s major point is that Trump’s order conflicts with a statute that specifically says that those who entered illegally are eligible for asylum. Despite this temporary ruling against the administration’s asylum order, a higher court will probably approve Trump’s action by invoking I.N.A. 212(f) that, according to the Supreme Court decision in the Travel Ban case, seems to give the president nearly unlimited power to ban whomever he wants from coming here no matter what the rest of the law says. I hope I’m wrong, but I wouldn’t bet against that outcome.
Some commentators are outraged by the court order blocking president Trump’s change to asylum because they think it violates the national sovereignty of the U.S. government to determine who can enter without limitation. Outside of the fringes, debates about national sovereignty are rare in the context of immigration policy because the Supreme Court has frequently affirmed Congress’s plenary (read unlimited) power to pass any immigration law it wants because of inherent power vested in the national sovereignty of the United States. Despite some arguments that seek to limit that power or that it was invented almost a century after the Constitution was enacted, this inherent power is not seriously challenged and almost nobody would consider it illegitimate.
Those Supreme Court cases cited foundational scholars in the field of international law to support the majority’s opinion that Congress had plenary power over immigration. In this context, international law refers to the customs, behaviors, and evolving rules that regulated the intercourse between governments and foreign individuals. The two most cited international law scholars in the above Supreme Court decisions, supporting Congress’s unlimited power to restrict the movement of people across borders, are Emer de Vattel and Samuel von Pufendorf. A recent article in the European Journal of International Law by Vincent Chetail shows just how selectively the Supreme Court cited those two scholars.
Before summarizing Chetail’s research on Vattel and Pufendorf, one must understand that they inherited and altered an international legal tradition that preceded them by centuries.
Chetail’s paper begins with the work of Francisco de Vitoria (1480–1546), who is frequently portrayed as the founder of international law (also known as the law of nations). He argued that the free movement of persons is a cardinal feature of international law through the right of communication, meaning that the right of humans to communicate with each other implies that they also have the right to move in order to communicate. He used this to argue that when the Spaniards sailed to the Americas, they had no right of conquest or to occupy the Americas. However, he went on to argue that Spaniards did “have the right to travel and dwell in those countries so long as they do no harm to the barbarians.” This right supposedly comes from the law of nations, which derives from natural law and is not abridged by the division of the world into nations. Vitoria argued that the right of free movement is mandatory so long as it does not cause harm to the host society, meaning crime. He even argued, quite radically, that nations that refuse admission to non‐criminals are committing an act of war. Vitoria applied his argument to Europeans, arguing that “[I]t would not be lawful for the French to prohibit Spaniards from traveling or even living in France, or vice versa, so long as it caused no sort of harm to themselves; therefore it is not lawful for the barbarians either.” Vitoria argued that these principles also support universal free trade, free navigation, and birthright citizenship.
Chetail then moves on to discuss the work of Hugo Grotius (1583–1645), who endorsed Vitoria’s description of international law and refined it further by arguing that individuals have a right to leave their own country and to enter and remain in another. In essence, Grotius argued that in order for there to be a right to emigrate, there must also be a right to immigrate. He even argued, like Vitoria, that the right of movement can be taken by force if it is unjustly denied by the government. Those who are criminals, would harm society, or skirt essential duties like repaying loans can be barred from immigrating or emigrating under Grotius’s theory. He applies the same limitations on emigrating as he does on immigrating.
Next, Chetail looks at the work of Samuel von Pufendorf (1632–1694). He was the first international law scholar who argued that state sovereignty and the state’s power to choose whom to admit dominated any natural right of movement. Pufendorf argued that individuals have the right to emigrate, but not to immigrate. He did not elaborate on why his opinion differed from that of Grotius and Vitoria on this matter. However, Pufendorf did write about two exceptions: shipwrecked sailors and some asylum seekers. He wrote:
[I]t is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted, who are driven on the coasts by necessity, or by any cause that deserves pity and compassion. Not but that it is barbarous to treat, in the same cruel manner, those who visit us as friends, and those who assault us as enemies [emphasis added].
Those exceptions aren’t as broad as they first seem. Although he argued that states should accept foreigners because “we see many states to have risen to a great and flourishing height, chiefly by granting license to foreigners to come and settle amongst them; whereas others have been reduced to a low condition, by refusing this method of improvement,” Pufendorf ultimately argued that those humanitarian concerns of admitting asylum‐seekers should only occur when the host state decides to so do.
Pufendorf reversed the reasoning of Grotius and Vitoria. They argued that free movement was the general rule with some specific exceptions, but Pufendorf argued that no movement was the general rule with some specific general exceptions and total state control otherwise.
Christian von Wolff (1679–1754) is the next philosopher of international law in the tradition of total state control over migration. Wolff’s main contribution was to argue that the sovereign owns the nation, and he exercises this power as an individual property holder does regarding entry of people onto his land.
Wolff does grant several exceptions to this general state power. Foreigners have a right to enter a country if they do not harm the state. This right of harmless use means that foreigners can travel through a nation’s territory on their way elsewhere, that asylum seekers or refugees have the right to enter and remain, and that “foreigners must be allowed to stay with us for the purpose of recovering health, … study, … [or] for the sake of commerce.” Wolff went on to write that “permanent residence in [a nation’s] territory cannot be denied to exiles by a nation, unless special reasons stand in the way [emphasis added].”
Those exceptions seem like strong limitations on the power of states to deny entry, but Wolff pulls a lawyer’s trick to argue that foreigners have the right to enter if those above conditions are met but also that there is no enforcement mechanism. Thus, Wolff argues that states have total control over entry and no private actor can commit violence to enforce the right of admission. Foreigners have a right to ask for admission under Wolff’s system and the state is morally bound to accept many of them, but the state is legally free to refuse them.
The last international law scholar that Chetail writes about is Swiss author Emer de Vattel (1714–1767), who is also the most important, as he is cited extensively in the Supreme Court cases discussed above. Vattel synthesized the work by the earlier scholars. He argued that there is a qualified power of state sovereignty to control immigration with the two substantial caveats of innocent passage and necessity. Innocent passage and necessity can only be denied using excellent reasons regarding the security of the admitting state. He wrote:
[T]he introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property [emphasis added].
The fact that Vattel argues for exceptions is important because the Supreme Court didn’t recognize these exceptions when it quoted him in the 1892 case Nishimura Ekiu v. United States:
It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to its self‐preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100.
Chetail doesn’t pull any punches when criticizing the judges who wrote the Nishimura Ekiu decision:
At the time of this judgment, the authority of Vattel proved to be instrumental in justifying a radical breakdown from the time‐honoured tradition of free movement … the famous dictum of the US Supreme Court was based on a biased and selective reading of Vattel. In fact, the two earlier‐quoted passages from the Swiss author were taken out of their context, with the overall result of providing a partial account of his views on the admission of foreigners. This misreading of Vattel has prevailed until now among US judges.
Most relevant to the ongoing chaotic situation on the Mexican border where many migrants stormed it and were repelled by tear gas, is that Vattel seems to endorse a right to illegal entry if legitimate entry is unjustly blocked by the government. Recall that asylum‐seekers, which includes those fleeing dire poverty under Vattel’s definition, fall under the necessity exception:
When a real necessity obliges you to enter into the territory of others – for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation – you may force a passage when it is unjustly refused.
Vattel, one of the two intellectual heavyweights whom the Supreme Court cites to justify Congress’s plenary power over immigration, argued that the government cannot bar asylum‐seekers and many other migrants from entering the United States and that those unjustly refused entry can do so illegally – a very radical position. According to Vattel, that right is not restricted and can be enforced against the will of any sovereign so long as illegal entry is the only way to safeguard an essential interest of the foreigner.
This post is not an argument for one or another of the views held by the above‐mentioned writers, but instead a summary of fascinating recent work by a professor of international law on an important subject. The most shocking thing is how selectively the Supreme Court cited Vattel over a century ago to grant Congress a vast and unrestricted power that Vattel did not recognize.