Can the President Shut Down the Border?



In response to the endless stream of Central American migrants currently attempting to access the U.S. by any means, lawful or otherwise, President Trump has threatened to shut down the border.

Predictably, the armchair jurists in the media have opined that the president doesn’t have the authority to close the border and will be sued if he tries. TheWashington Post proclaimed, “The only way Trump could potentially shut down the border would be through trade.” (Although, the legal sages at the Post didn’t go into any detail about how that would actually work, since the object of any border shutdown would be keeping out the people currently trying to get in.)

So what’s the real deal? Can the president shut down the border? He can. And the Supreme Court has repeatedly said so:

  • 8 U.S.C. § 1182(f), unequivocally grants the president the authority to “suspend the entry of all aliens or any class of aliens” whenever he finds that their entry would be “detrimental to the interests of the United States.”  
  • In Sale v. Haitian Centers Council, Inc., decided in 1993, the Supreme Court held that, 1182(f) was intended to give the president the authority to prevent unauthorized mass migrations. Therefore, it delegates “ample power” to impose entry restrictions on foreign nationals, in response to emergent situations that threaten America’s interests. In fact, the Court found that 1182(f) was a more than sufficient basis for the naval blockade which ended the mass migration from Haiti during the Clinton administration.
  • More recently, in Trump v. Hawaii, the high Court reaffirmed Sale holding that, “Fairly read, [1182(f)] vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the [Immigration and Nationality Act] — including in response to circumstances that might affect the vetting system or other ‘interests of the United States.’” The court also noted that, “By its terms, §1182(f) exudes deference to the President in every clause.”

Based on the Supreme Court’s holdings in Sale and Trump v. Hawaii, 1182(f), it would appear to grant the president more than ample authority to close ports of entry because they are being overrun by people seeking to enter the U.S. by any means, lawful or illegal.

That the mainstream media has repeatedly presented its inaccurate opinions on this issue as a factual statement of the applicable law is completely unconscionable.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

8 Comments

  1. avatar

    Trump promised much during his campaign but accomplished little in stopping the tsunami of illegal aliens across our border The flood continues virtually unabated, this IS an invasion, I say using our military is appropriate with order stop stop the invader instead of becoming babysitters.
    I realize we have been sold out by BOTH political parties on the immigration issue, no one is standing up for us other than Trump and a few others. Our last 5 Presidents refused to enforce our immigration laws and we may well have a 6th.
    Trump could use Article !V, Section 4 of the US Constitution which guarantees to every state in the Union a Republican form of government that shall protect each of them from invasion. Bill Clinton is no doubt thinking, who decides what IS an invasion !
    We have been sold out, big mistake giving Mexico one year to get their act together ! You don’t continue the catch and release program when you campaigned to end it. Our border is NOT being defended, it appears Trump has no control over our borders !

    • avatar

      Please consider closing the border down so we may “REBOOT” our border so we do it right, NOT quick.

  2. avatar

    Give Congress an ultimatum of two weeks max to come up with legislative fixes and then shut the border. This is like Brexit. The British people voted in 2016 to break with the European Union because they wanted to regain control of their borders. Since then the government and political elite have done everything they can to delay leaving and ultimately stopping it. If factories shut down here so be it. A lot of Democratic candidates are calling for open borders. They have always worked for that goal, now they say it.

    Not only did the Coast Guard shut down the Haitian exodus, but they did the same thing with Cubans. Previously they had brought Cuban rafters to American soil and automatic asylum here. Then they started returning them to Cuba and it stopped the flow almost completely. Carter did the same thing after first allowing Cubans to come freely from the port of Mariel to America. There is ample precedent for this as an emergency situation.

  3. avatar
    Carol Clements on

    Years from now when the truth is revealed ii think the world will be shocked. Many deaths go uncounted because of the controversy. The number of people raped and sold like slaves in to trafficking. Who are we kidding this rush on the border is a cover up for criminal activity. These caravans were sold a bunch of lies to get them started and funded by Drug cartels and human trafficking.