Proposed Interdiction of Haitian Flag Vessels

Proposed executive agreement between the government of Haiti and the United States, 

by which the U.S. Coast G uard is to stop and board Haitian flag vessels on the high 

seas in order to prevent Haitians from entering the United States illegally, is authorized 

both by the U.S. immigration laws, and by the President’s inherent constitutional 

power to protect the Nation and to conduct foreign relations.

Authority for provision in proposed agreement with Haiti, by which the Coast Guard 

will detain Haitians emigrating in violation of Haitian law and return them to Haiti, 

derives from the President’s statutory power to guard the borders against illegal entry 

of aliens, and from his inherent constitutional power in the field of foreign relations.

August 11, 1981

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This responds to your inquiry concerning the implementation of the 

proposed interdiction of Haitian flag vessels. As presently formulated, 

the government of Haiti and the United States will enter into an 

agreement (the Agreement) permitting the United States Coast Guard 

to stop Haitian flag vessels, board them and ascertain whether any of 

the Haitians aboard have left Haiti in violation of its travel laws and 

whether they intend to travel to the United States in violation of U.S. 

immigration laws. Individuals who are determined to have left Haiti 

illegally will be returned to Haiti pursuant to the President’s authority 

in the field of foreign relations in order to assist Haiti in the enforcement of its emigration laws. Those who have left Haiti, whether legally 

or illegally, in an attempt to enter the United States illegally will be 

returned to Haiti pursuant to the President’s authority under 8 U.S.C. 

§§ 1182(0 and 1185(a)(1) to enforce U.S. immigration laws, to protect 

our sovereignty, and as an exercise of his power in the field of foreign 

relations. *

The Coast Guard plans to intercept the Haitian vessels in the Windward Passage, on the high seas but relatively close to Haiti.2 At that

1 We note that the Agreement does not cover United States vessels either while they are in Haitian 

waters or while they are on the high seas. Therefore, the Agreement does not contemplate the return 

of the Haitians on board such vessels to Haiti.

2 Placing the Coast Guard vessels closer to the United States is apparently not possible because of 

the increased difficulties and costs of detecting and interdicting vessels from Haiti once they have 

traveled far from Haiti and the practical problems o f caring for the Haitians during the 4-day voyage 

back to Haiti.

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point, Haitians will be headed toward either the United States or the 

Bahamas. Although experience suggests that two-thirds of the vessels 

are headed toward the United States, it is probable that, as the interdiction continues, an ever-increasing number will claim they are going to 

the Bahamas. Unless the Haitians admit they are coming to the United 

States, establishing their intended destination may become more difficult.

1. Effect o f the Immigration and Nationality Act (INA). The interdiction will not be affected by the provisions of the INA. Aliens are 

entitled to exclusion proceedings only when they arrive “by water or 

by air at any port within the United States.” 8 U.S.C. § 1221(a). They 

are entitled to deportation proceedings only if they are “within the 

United States.” 8 U.S.C- § 1251. Asylum claims may only be filed by 

those “physically present in the United States or at a land border or 

port of entry.” The Refugee Act of 1980, Pub. L. No. 96-212, § 201(b), 

94 Stat. 105 (to be codified at 8 U.S.C. § 1158(a)). Since the interdiction 

will be taking place on the high seas, which is not part of the United 

States, 8 U.S.C. § 1101 (a)(38), none of these provisions will apply.

2. Coast Guard Authority to Enforce United States Laws. The Coast 

Guard is authorized to stop ships upon the high seas in order to detect 

violations of American laws. 14 U.S.C. § 89(a).3 The interdiction at seas 

of a foreign flag vessel requires the permission of the flag state, which 

the contemplated Agreement expressly grants.4 The authority for returning the Haitians who are attempting to enter the United States 

illegally may be found in both statutory authority and implied constitutional authority under Article II. The two statutes are 8 U.S.C. 

§§ 1182(f) and 1185(a)(1). The first, 8 U.S.C. § 1182(0, states:

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

3This section states.

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, 

and arrests upon the high seas . . . for the prevention, detection, and suppression of 

violations of laws of the United States. For such purposes, commissioned, warrant, 

and petty officers may at any time go on board of any vessel subject to the 

jurisdiction, or to the operation of any law, of the United States, address inquiries to 

those on board, examine the ship's documents and papers, and examine, inspect, and 

search the vessel and use all necessary force to compel compliance When from such 

inquiries, examination, inspection, or search it appears that a breach of the laws of 

the United States rendering a person liable to arrest is being, or has been committed, 

by any person, such person shall be arrested or, if escaping to shore, shall be 

immediately pursued and arrested on shore, or other lawful and appropriate action 

shall be taken; or, if it shall appear that a breach of the laws of the United States has 

been committed so as to render such vessel, or the merchandise, or any part thereof, 

on board of, or brought into the United States by, such vessel, liable to forfeiture, or 

so as to render such vessel liable to a fine or penalty and if necessary to secure such 

fine or penalty, such vessel or such merchandise, or both, shall be seized.

4The continuing jurisdiction of a country over vessels flying its flag on the high seas is a basic 

principle of international law. 1 L Oppenheim, International Law § 264 (8th ed. 1955) This principle 

has been codified in the Convention on the High Seas, Apr. 29, 1958, art. 6, 13 U.S.T. 2313, T.I.A.S 

No. 5200. Ships flying no flag may also be stopped to determine if they are stateless

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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. 5

The second, 8 U.S.C. § 1185(a)(1), provides:

(a) Until otherwise ordered by the President or Congress, it shall 

be unlawful—

(1) for any alien to . . . attempt to . . . enter the United States 

except under such reasonable rules, regulations, and orders, 

and subject to such limitations and exceptions as the President 

may prescribe . . .

Under § 1182(f), the President would make a finding that the entry of 

all Haitians without proper documentation is detrimental to the interests 

of the United States and issue a proclamation suspending their entry. It 

could be argued that the entry of illegal aliens, Haitians or otherwise, is 

already “suspended” since it is already illegal for them to come, and 

that the section is directed against those who are otherwise eligible. 

The section, however, is not limited by its terms to documented aliens, 

and the legislative history is silent on this point. Since the section 

delegates to the President the authority to exclude entirely certain 

classes of aliens, we believe that a return of the Haitians can be based 

on the Coast Guard’s power to enforce federal laws. 14 U.S.C. § 89(a). 

Likewise, § 1185(a)(1) makes it unlawful for any alien to enter the 

country unless in compliance with the rules and limitations set by the 

President. All of the undocumented Haitians who are attempting to 

enter the country are therefore doing so in violation of this section. See

also 8 U.S.C. § 1103 (Attorney General’s duty to control and guard the 

borders); Ex parte Siebold, 100 U.S. 371, 396 (1879).®

Implied constitutional power is less clear. Where Congress has acted, 

the regulation of immigration is an area in which Congress exercises 

plenary power. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (power 

to exclude aliens prevails over First Amendment interests of citizens). 

There has been recognition, however, that the sovereignty of the 

Nation, which is the basis of our ability to exclude all aliens, is lodged 

in both political branches of the government. See Ekiu v. United States,

142 U.S. 651, 659 (1892). An explicit discussion is found in United States

ex rel. K nauff v. Shaughnessy, 338 U.S. 537 (1950). Rejecting a claim 

that it should review regulations which excluded a German war bride, 

the Court stated:

5Neither this Office nor the Immigration and Naturalization Service (INS) is aware of any time 

when the power granted by this section, added in 19S2, has been used

6 Given the desperate physical condition of many of the Haitians found on the high seas, the Coast 

Guard may, in particular situations, also be acting pursuant to its duty to render aid to distressed 

persons and vessels. 14 U.S C. §§ 2, 88.

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Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain 

unconstitutional delegations of legislative power. But 

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 the nation.

United States v. Curtiss- Wright Export Corp., 299 U.S. 304;

Fong Yue Ting v. United States, 149 U.S. 698, 713. 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.

Id. at 542 (citations omitted, emphasis added). See also Savelis v. 

Vlachos, 137 F. Supp. 389, 395 (E.D. Va. 1955) affd, 248 F.2d 729 (4th 

Cir. 1957) (dictum).

The President, in the exercise of this inherent authority, would be 

acting to protect the United States from massive illegal immigration. 

His power to protect the Nation or American citizens or property that 

are threatened, even where there is no express statute for him to 

execute, was recognized in In re Neagle, 135 U.S. 1, 63-67 (1890). See

also In re Debs, 158 U.S. 564, 581 (1895); United States ex rel. MartinezAngosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly, J. concurring); 50 U.S.C. § 1541 (War Powers Resolution).7 A recent Supreme 

Court decision points out that, in the absence of legislation, it was a 

common perception that the President could control the issuance of 

passports to citizens, citing the foreign relations power. Haig v. Agee,

453 U.S. 281, 292-94 (1981).

The President may also act to return the boats with the flag state’s 

permission as an exercise of his power in the field of foreign relations, a 

field in which “with its important, complicated, delicate and manifold 

problems, the President alone has the power to speak or listen as a 

representative of the nation.” United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 319 (1936). See also Narenji v. Civiletti, 617 F.2d 

745, 747-48 (D.C. Cir. 1979), cert denied, 446 U.S. 957 (1980) (regulation of Iranian students); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) (regulation of foreign airlines). The 

President’s power is strongest where he has well recognized constitutional powers (foreign affairs) to which Congress has added statutory 

delegation (8 U.S.C. §§ 1182 (0, 1185).

7 This Office has relied upon such inherent authority in an opinion, stating that the President could 

act to prevent airplane hijackings by placing marshals on board, even in the absence o f express 

authority to take such preventive measures Memorandum for the Director, United States Marshals 

Service, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, 2-3 (Sept 

30, 1970).

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3. Coast Guard Authority to Enforce Haitian Law Pursuant to an

Agreement Entered into by the Executive. The Coast Guard has submitted a draft Agreement that would permit the Coast Guard to board 

Haitian vessels in order to determine whether any alien is committing 

an offense against Haitian emigration laws. The issue which arises is 

whether the Executive can enter into an agreement under which the 

United States agrees to detain Haitians who are emigrating in violation 

of Haitian law in order to return them to Haiti. The President’s authority to enter into executive agreements with foreign nations may be 

exercised either under congressional authorization or the President’s 

inherent authority.8 The President’s power to enter into such agreements on his own authority can arise from “that control of foreign 

relations which the Constitution vests in the President as a part of the 

Executive function,” 39 Op. Att’y Gen. 484, 486 (1940).9 The limits on 

presidential power to enter into these agreements are not settled and 

have aroused controversy from the earliest days of our Republic.10

We believe that authority to enter into the Agreement is provided by 

two sources—the power delegated by Congress to the President, 

through the Attorney General, to guard the borders, 8 U.S.C. § 1103(a), 

and the President’s authority in the field of foreign relations. The arrest 

of Haitian citizens as an aid to Haiti’s enforcement of its emigration 

laws will enable the President to curtail the flow of Haitians in the 

furtherance of his “power and duty to control and guard the boundaries 

and the borders of the United States against the illegal entry of aliens.” 

Id. The breadth of the President’s authority in the field of foreign 

relations is extremely broad, as illustrated by the numerous executive 

agreements that have been negotiated and upheld by the courts.11 See

United States v. Pink, 315 U.S. 203 (1942) (Litvinov Agreement); United

States v. Belmont, 301 U.S. 324 (1937) (same); Tucker v. Alexandroff,

183 U.S. 424, 435 (1902) (Mexican/United States agreement to permit 

both countries to cross the border in pursuit of marauding Indians);12 

Dole v. Carter, 444 F. Supp. 1065, 1068-69 (D. Kansas), motion denied,

569 F.2d 1109 (10th Cir. 1977) (return of the Crown of St. Stephen).

An agreement to aid the enforcement of the laws of another country 

is not without precedent. In 1891, the United States and Great Britain 

entered into an executive agreement prohibiting for one year the killing 

of seals in the Bering Sea. Modus Vivendi Respecting the Fur-Seal Fisheries in Behring Sea, 1 W. Malloy, Treaties, Conventions, International

8 E. Corwin, The President’s Control of Foreign Relations 116-17 (1917) (Corwin).

9 Agreements executed by various Presidents for the settlement of claims of United States citizens 

against foreign governments are examples. See Dames & Moore v. Regan, 453 U.S. 654 (1981).

10 E. Corwin, The President, 216-233 (3d ed. 1948) (debate between Hamilton and Madison over 

the constitutionality of Washington’s Proclamation of Neutrality); L. Henkin, Foreign Affairs and the 

Constitution 177 (1972) (Henkin).

11 Henkin, supra, at 179.

12 1 W. Malloy, Treaties, Conventions, International Acts, Protocols, and Agreements 1144 (1910) 

(Malloy).

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Acts, Protocols, and Agreements, 743 (1910) (Malloy). This agreement 

permitted the seizure of offending vessels and persons if “outside the 

ordinary territorial limits of the United States,” by the naval authorities 

of either country. Id., Art. III. “They shall be handed over as soon as 

practicable to the authorities of the nation to which they respectively 

belong. ...” Id. As there was no statutory authority for this agreement, the President acted pursuant to his inherent authority in the field 

of foreign affairs.

Between 1905 and 1911, Presidents Roosevelt and Taft entered into a 

series of executive agreements that permitted the United States to 

operate the customs administration of both Santo Domingo (now the 

Dominican Republic) and Liberia.13

[This first agreement] provided, in brief, for (1) a receiver of ‘the 

revenues of all the customs houses,’ to be designated by the 

President of the United States and satisfactory to the Dominican 

President; (2) the deposit in a New York bank for the benefit of 

creditors of all receipts above 45 percent, which was to be 

turned over to the Dominican Republic for the expenses of 

government administration and the necessary expenses of collection; and (3) the eventual distribution of the funds in the payment of Dominican debts.

W. McClure, International Executive Agreements 94 (1941). A customs 

administration in Haiti was established by treaty in 1915 but an elaborate series of executive agreements were signed “both extending and 

terminating various phases of American intervention and assistance in 

the financial, medical and military affairs of Haiti.” 14

Many authorities have noted that a President’s exercise of his authority in this area is “a problem of practical statemanship rather than of 

Constitutional Law.” E. Corwin, The President’s Control of Foreign 

Relations 120-21 (1917).15 The Supreme Court has upheld a variety of 

executive agreements based upon a number of theories and it is difficult 

to delineate with certainty the limits of the President’s authority when 

he enters into such agreements based solely on his inherent executive 

authority. But see Reid v. Covert, 354 U.S. 1, 16-19 (1957) (agreement 

cannot deny civilian his right to a trial by jury). Because this Agree13 1 W. Malloy, supra, at 418. See also McDougal & Lans, Treaties and Congressional-Executive or

Presidential Agreements, 54 Yale L.J. 181, 279 (1945); N. Small, Some Presidential Interpretations of 

the Presidency, 78-79 (1970) The arrangement was based on a fear that these countries' debts would ^ 

be used by European countries as a grounds for military intervention.

14 McDougal, supra, 54 Yale L.J. at 279. The final one was signed in 1934

15 Commitment of financial resources overseas "depend[s] directly and immediately on appropriations from Congress. . . . While the issue of Presidentiaf power to make executive agreements or 

commitments has no legal solution, political forces have mitigated its theoretical rigors. The President 

has to get along with Congress and with the Senate in particular, and he will not lightly risk 

antagonizing it by disregarding what it believes are its constitutional prerogatives." Henkin, supra, at

183-84. See also K. Holloway, Modem Trends in Treaty Law 216-17 (1967), McClure, supra, at 330; 

Restatement (Second) of the Foreign Relations Law of the United States § 121 (1965)

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ment will be based both on delegated and inherent authority, we believe that it is constitutional.

4. Obligations Under the United Nations Protocol Relating to the Status

o f Refugees, Jan. 31, 1967, United Nations, Protocol, 19 U.S.T. 6223,

T.I.A.S. No. 6577. Article 33 (19 U.S.T. 6276) of the Protocol, to 

which the United States is a party, provides that “No Contracting State 

shall . . . return (“refouler”) a refugee in any manner whatsoever to the 

frontiers of territories where his life or freedom would be threatened on 

account of his race, religion, nationality, membership of a particular 

social group or political opinion.” Individuals who claim that they will 

be persecuted for one of these reasons must be given an opportunity to 

substantiate their claims. The Protocol does not, however, mandate any 

particular kind of procedure. We have reviewed the plan outlined in 

the draft prepared by INS and believe that it comports with the 

Protocol.

5. Effect o f the Foreign Assistance Act o f 1961, 22 U.S.C. § 2151-2151d

(Supp. I l l 1979). We know of no provision of the Act that would 

prohibit the interdiction, since no foreign aid funds are being used.

6. Formal Implementation o f the Interdiction. There are three formal 

steps still to be taken before the interdiction can begin. The first is 

clearance of the Agreement by the Department of State. The second is 

the signing of the Agreement by the United States and the government 

of Haiti.16 The third is the issuance of a proclamation by the President 

pursuant to 8 U.S.C § 1182(f)- The proclamation would contain a finding that the entry of Haitian nationals who do not possess proper 

documentation for entry into the United States is detrimental to the 

interests of the United States. The proclamation would then suspend 

the entry of all such Haitian nationals. If a decision is made not to rely 

upon 8 U.S.C. § 1182(0, no proclamation is necessary. However, the 

validity of the President’s action will certainly be strengthened by 

relying on both statutory provisions which provide support for the 

contemplated action.

The Coast Guard is presently under the authority of the Department 

of Transportation. 14 U.S.C. § 1. The Attorney General is in charge of 

enforcing the immigration laws. 8 U.S.C. § 1103. The Coast Guard will 

be enforcing both the immigration laws and the laws of Haiti pursuant 

to the Agreement. While a memorandum of understanding signed by 

the Coast Guard, INS, and the Department of State would facilitate 

operations, 14 U.S.C. § 141, a presidential order to the Secretary of 

Transportation to have the Coast Guard act to enforce both parts of 

the Agreement will avoid any question about the Coast Guard’s authority to act.

18 The Agreement should be transmitted to Congress within 60 days. 1 U S.C. § 112b(a) (Supp. Ill 

1979).

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7. Coast Guard’s Authority to Operate in Haitian Waters: Under the 

Agreement Haiti will grant the Coast Guard permission to enter its 

waters to return Haitian nationals. The Coast Guard’s authority to enter 

the waters will be pursuant to the Agreement.17 By permitting the 

Coast Guard to enter its waters, Haiti is granting free passage to our 

ships and crews. Sovereign nations often grant permission for the passage of foreign forces. Tucker v. Alexandroff, 183 U.S. 424, 435 (1902); 

Schooner Exchange v. McFaddon, 11 U.S. 116, 139-40 (1812); 2 J. 

Moore, A Digest of International Law §213 (1906). We suggest a 

modification to the Agreement to make it clear that Haiti will not 

exercise jurisdiction over the Coast Guard ships or her crews while 

they are in Haitian waters. Schooner Exchange, 11 U.S. at 140, 143.

T h e o d o r e B. O lson

Assistant Attorney General

Office o f Legal Counsel

17 It will not be pursuant to 14 U.S.C. § 89(a) because the waters of Haiti are not within the 

jurisdiction of the United States. United States v. Conroy, 589 F.2d 1258, 1265 (5th Cir. 1979) Section 

89(a), however, does not limit the authonty of the Coast Guard to act pursuant to another provision 

of law—in this case, the Agreement. 14 U.S.C. § 89(c).

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