The opinion of the court was delivered by: RICHEY
The complaint in this case raises several challenges to the interdiction by United States officials of visaless aliens on the high seas. This program of interdiction was ordered by the President in 1981. The plaintiffs herein are the Haitian Refugee Center ("HRC"), a nonprofit membership corporation located in Miami, Florida, and two of its members. The defendants are the Commandant of the U.S. Coast Guard, and the Commissioner of the Immigration and Naturalization Service ("INS").
The Court currently has before it a motion to dismiss, and cross-motions for summary judgment. Upon consideration of the motions, the supporting memoranda, oral argument, and the entire record herein, the court has decided to grant the defendants' motion to dismiss for failure to state a claim upon which relief can be granted. The Court has today issued an Order consistent with this Opinion.
On September 29, 1981, President Reagan authorized the interdiction of certain vessels containing undocumented aliens on the high seas. Proclamation No. 4865, 46 Fed. Reg. 48107 (published October 1, 1981), reprinted in 8 U.S.C.A. sec. 1182 (supp. note). The President had found that the illegal migration of many undocumented aliens into the United States was "a serious national problem detrimental to the interests of the United States", and that international cooperation to intercept vessels trafficking in such migrants was a necessary and proper means of ensuring the effective enforcement of United States immigration laws. Id.
By Executive Order No. 12324, also dated September 29, 1981, President Reagan ordered the Secretary of State to enter into cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea. 46 Fed. Reg. 48109, 48110 (published October 1, 1981), reprinted in 8 U.S.C.A. sec. 1182 (supp. note). He ordered the Secretary of Transportation to issue instructions to the Coast Guard in order to enforce the suspension of undocumented aliens and the interdiction of any "defined" vessel carrying such aliens. Among the defined vessels were the vessels of foreign nations with which the United States has arrangements authorizing it to stop and board such vessels.
Executive Order 12324 also ordered the Secretary of Transportation to direct the Coast Guard "to return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist." Id. The Order provided, however, "that no person who is a refugee will be returned without his consent." Id. The Coast Guard actions were to be taken only outside United States territorial waters. Indeed, plaintiffs admit that the instant suit challenges only actions taken beyond the territorial boundaries of the United States. Transcript at 48.
The President also ordered the Attorney General, in consultation with the Secretaries of State and Transportation, to take appropriate steps "to ensure the fair enforcement of our laws relating to immigration . . . and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Id.
THE PRESIDENT'S CONSTITUTIONAL AND STATUTORY AUTHORITY TO SUSPEND THE ENTRY OF ILLEGAL ALIENS ON THE HIGH SEAS
The President's power to interdict illegal aliens on the high seas derives from statutory and constitutional sources. Congress granted statutory authority in 8 U.S.C. §§ 1182(f) and 1185(a)(1), which provide:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Unless otherwise ordered by the President, it shall be unlawful -- (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe; . . . .
These provisions make it clear that Congress has allowed the Executive Branch to exercise its broad discretion regarding alien immigration. Mathews v. Diaz, 426 U.S. 67, 81, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976). It is particularly appropriate for Congress to give the President a high degree of flexibility where the exclusion of aliens directly implicates the sovereignty of our nation and is interwoven with foreign relations. Id.; Zemel v. Rusk, 381 U.S. 1, 17, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965); Knauff v. Shaughnessy, 338 U.S. 537, 542, 94 L. Ed. 317, 70 S. Ct. 309 (1950).
Congress has made clear its approval of the interdiction program through the budget process. In providing funding for the program, in a recent Senate Report accompanying Senate Bill 2852, the Committee on Appropriations reported as follows:
The Committee is pleased with the Coast Guard's Haitian interdiction program which during the first half of fiscal year 1984 interdicted seven vessels, turning back 349 people. Based on actual arrivals to our shores and the INS estimate of the average historical number of arrivals to our shores each year, the program is 95 percent effective. The Coast Guard is directed to continue the current patrols in the Windward Passage and off the various coastal areas of Florida through fiscal year 1985.
Report, Department of Transportation and Related Agencies Appropriations Bill, 1985, S. Rep. No. 98-561 at 15, 98th Cong., 2d Sess. (1984).
Congress has also specified that foreign aid, under the Foreign Assistance Act of 1961, and credits under the Arms Export Control Act, be made available to Haiti only if the President determines that the Government of Haiti "is continuing to cooperate with the United States in halting illegal emigration to the United States from Haiti." Pub. L. No. 98-151, 97 Stat. 971 (1983). Thus, the President's action has received explicit support from Congress. The statutory authority for high seas interdiction is beyond doubt in this case, where the President and Congress so clearly concur. Cf. Haig v. Agee, 453 U.S. 280, 300-01, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981).
The Coast Guard's interdiction is only allowed outside the territorial waters of the United States. The Coast Guard's authority is found in 14 U.S.C. § 89(a), which provides for the stopping of ships on the high seas in order to detect violations of American laws. The powers given the Coast Guard under that statute specifically include "lawful and appropriate action." 14 U.S.C. § 89(a). Thus, an agreement with another country specifically granting the United States permission to return seized vessels and migrants to that country makes such return proper under § 89(a).
In addition to statutory authority, the President has implied constitutional power under Article II of the Constitution to suspend entry of certain groups of aliens. The Chinese Exclusion Case, 130 U.S. 581, 603-11, 32 L. Ed. 1068, 9 S. Ct. 623 (1889). As the Supreme Court stated in Knauff v. Shaughnessy, in language applicable here:
There is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of our nation. United States v. Curtiss-Wright Export Corp., 299 U.S. at 304; Fong Yue Ting v. United States, 149 U.S. 698, 713 [37 L. Ed. 905, 13 S. Ct. 1016]. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.
338 U.S. 537, 542-43, 70 S. Ct. 309, 94 L. Ed. 317 (1950) (citations omitted) (emphasis supplied). Even if there is no express statute for the President to execute, he may act to protect threatened American citizens or property. In re Neagle, 135 U.S. 1, 63-67, 34 L. Ed. 55, 10 S. Ct. 658 (1890). Thus the President clearly has inherent authority to act to protect the United States from harmful illegal immigration.
This inherent power is closely related to the President's undisputed, exclusive power to act "as the sole organ of the federal government in the field of international relations. . . ." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20, 81 L. Ed. 255, 57 S. Ct. 216 (1936). "It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations. . . ." Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 96 L. Ed. 586, 72 S. Ct. 512 (1952).
In sum, the President's power to suspend the entry of illegal aliens from the high seas by interdiction has a ...