IRLI submitted a friend-of-the-court brief (attached here) in the United States Supreme Court supporting the United States Government in a lawsuit brought by seventeen Chinese citizens captured in Afghanistan and held at Guantanamo Bay Naval Base, Cuba as enemy combatants who sought an order compelling their release into the United States (The aliens had rejected offers of resettlement in third party countries). In its brief, IRLI first noted the issue presented: Whether the Executive Branch has the authority to exclude, expel, and detain foreigners, in accordance with the immigration laws as prescribed by Congress and through the Executive’s war power. Citing precedent, IRLI noted that the plenary power of the political branches to exclude and expel foreigners from the United States has been recognized by the Court for over a century. It is a power that is inherent within each nation’s sovereignty, and can only be limited by treaty, statute, or some other express constitutional limitation.
IRLI argued that should the court grant the aliens’ request to be released, they cannot seek the remedy of admission into the territorial United States. It is well established that Congress sets the laws by which the Executive Branch may exclude foreigners from entering this country. However, the Executive Branch may also exclude foreigners in the interests of national security under the war power and in the interests of self-preservation of government. The Executive’s power to exercise such exclusion does not require war, for any “internal dangers short of war . . . may lead to its use” that are within the constraints prescribed by Congress.
IRLI’s brief discussed in detail the history of the legislative and executive branches’ plenary power to exclude and expel foreigners. IRLI concluded that the plenary power doctrine prevents the aliens from settling in the territorial United States absent the consent of the political branches. For national security reasons, these aliens can be excluded.