The language of Section 212(e) of the 1952 Immigration and Nationality Act, 8 U.S.C. §1182(f), contains a sweeping authorization of presidential discretion to suspend and restrict alien entry into the United States. Senator Pat McCarran (D-NV) first introduced the subsection in 1950 as part of the omnibus immigration bill drafted by his Judiciary Committee’s immigration subcommittee. The specific origins of the language and the original intent behind the subsection remain missing pieces in the extensive scholarly literature on the 1952 INA and legislative history as explored by the courts. This article reveals that the subcommittee modeled the subsection on the sixth proviso of the 1917 Immigration Act, the May 1918 Wartime Measure, and a selective interpretation of Supreme Court precedent. The article reveals further that the original intent behind the subsection was to close perceived loopholes in existing law enabling entry by displaced persons and Communist governmental officials.
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I thank Peter Andreas, Julia Azari, Lowell Barrington, Alice Friman, Julie Friman, Bruce Gentry, Audie Klotz, Barrett McCormick, Paul Nolette, Phil Rocco, and the anonymous reviewers at JPH for their comments and suggestions. This manuscript expands on my article in The Monkey Cage in The Washington Post , “Trump’s travel ban is built on a law meant to ‘protect’ the U.S. from Jews and communists,” 22 and 26 June 2017.
1. 98 Cong. Rec. 4123 (1952).
3. U.S. Congress, House, Revising the Laws Relating to Immigration, Naturalization, and Nationality, H.R. 5678, Committee on the Judiciary, House, Report No. 1365, 14 February 1952 (hereafter Report No. 1365) (Washington, D.C., 1952), 145.
5. 98 Cong. Rec. 4123 (1952).
6. These efforts are discussed in detail below.
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