UNITED STATES CONSTITUTIONAL LIMITS ON THE EXECUTIVE IN DETERMINING REFUGEE POLICY: APPLYING UNITED STATES CONSTITUTIONAL RIGHTS EXTRATERRITORIALLY
UNITED STATES CONSTITUTIONAL LIMITS ON THE EXECUTIVE IN DETERMINING REFUGEE POLICY: APPLYING UNITED STATES CONSTITUTIONAL RIGHTS EXTRATERRITORIALLY
Abstract: In US refugee policy, and foreign affairs in general, the Executive branch has an enlarged role in determining the law. While there are concurrent US constitutional powers between the Executive and Congress in foreign affairs, often, the US Supreme Court abdicates to the Executive. In particular, Sale v. Haitian Centers Council, Inc. highlights this division of power in US foreign affairs. In Sale, the US Supreme Court ruled that the US president’s discretion in foreign affairs, based on a generalized delegation of power from Congress, outweighed any international or domestic obligations to provide asylum applicants status determination proceedings. Additionally, the Court made this ruling despite congressional acts that required determination proceedings for asylum applicants. These policies of interdiction seen in Sale remain largely intact in modern US foreign policy and continue to plague Haitian migrants into 2022. With this in mind, this Note analyzes potential extraterritorial application of the US Constitution (“the Constitution”), namely rights to procedural due process. Following this analysis, this Note then highlights the ways that applying the Constitution to asylum applicants abroad can act as a safeguard to ensure that the United States upholds important international and domestic obligations despite the US Supreme Court’s tendency to defer to the Executive in foreign affairs.
Recommended Citation: Jacqueline Hayes, United States Constitutional Limits on The Executive in Determining Refugee Policy: Applying United States Constitutional Rights Extraterritorially, 46 Fordham Int'l L.J. 127 (2022).