Last Monday night, April 20, President Trump tweeted that he was about to sign an executive order temporarily suspending immigration to the United States in response to the “invisible enemy” of the coronavirus. Immediately, the president’s tweet turned into headlines that the United States was about to end all immigration. The formal proclamation he actually issued two days later was considerably narrower—even to the apparent disappointment of some of his conservative allies. The actual product: a 60-day ban on new permanent residents entering from abroad, other than those who are spouses or children of U.S. citizens. But reporting from the Washington Post and New York Times suggests that presidential advisors have big plans to expand on this proclamation, thus advancing their agenda to transform the United States from a country of immigration to a demographically altered, fortress walled off from the world.
A presidential proclamation banning all immigration would be unprecedented in our history. Even the far narrower restrictions actually announced assert presidential power over immigration in ways never before seen. We are about to publish a book with Oxford University Press exploring the deep history of presidential control over immigration. In it, we conclude that the president long has been our immigration policymaker in chief. But no president has ever attempted to suspend immigration on the scale that Trump just proclaimed. Instead, most presidents have pushed back against movements to sharply limit or end immigration by opposing or vetoing restrictionist legislation or exhorting the public to see immigration’s benefits.
But the fact that this latest presidential proclamation is unprecedented does not make it illegal. The president’s most recent assertion of immigration authority might seem shocking—an obvious usurpation of Congress’s authority to control immigration and the strongest signal yet that the presidency has become dangerously muscular in pursuit of Trump’s vision for a different kind of America. But as the Trump administration’s actions over the last three years have made all too clear, Congress in fact long ago delegated tremendous immigration-related authorities to the executive branch. The president may well have the power to suspend some or even all immigration. That’s the problem.
The battle lines against the current COVID-19 proclamation and future similar anti-immigration actions are therefore as likely to be political as legal. But arguments of each kind depend on the other, and so it remains crucial to understand whether and how the COVID-19 proclamation amounts to a cynical, or, more strongly put, highly abusive manipulation of the president’s power within the system.
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To support his COVID-19 proclamation, the president relies on the very same statutory authority he invoked during his first week in office to bar the entry of nationals from several Muslim-majority countries—section 212(f) of the Immigration and Nationality Act (INA) (8 U.S.C. §1182(f)). Section 212(f) provides that “[w]henever the president finds that the entry of any aliens or any class of aliens would be detrimental to the interests of the United States,” he has the power by proclamation to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” (emphasis added).
Whereas the 2017 entry ban cited terrorism and related security concerns, the new COVID-19 proclamation places economic catastrophe front and center as its justification, claiming that immigration must be suspended to protect American workers from foreign competition in the labor market as a result of the pandemic and aggressive mitigation measures. Whatever we think of the proclamation as economic policy, it certainly differs in one key respect from this president’s other immigration orders: we truly are in a national emergency—a profound public health emergency that has given rise to a severe economic crisis whose shape we cannot yet fully see. Trump’s past declarations of crisis to justify extraordinary immigration actions have been fabricated or embellished: in addition to the grossly overbroad 2017 entry ban, think of the non-existent emergency at the border used to justify the diversion of military funds to construct the wall.
But precisely because we are in perilous times, we must closely scrutinize the president’s authorities and the proclamation itself. Whether the new order is the extent of the immigration ban he intends to impose, or just an opening move in a larger campaign to strangle legal immigration to the United States, we must understand what the law permits.
The Table Was Already Set
Enacted in the early days of the Cold War as part of the landmark INA, section 212(f)’s suspension power was understood by both supporters and opponents as a breathtaking delegation of power to the president. By its very terms, the provision appears to contemplate scenarios in which the president might literally close the borders to all who are not U.S. citizens—barring the entry of “all aliens.” The provision does require that the president determine that the entry of the banned immigrants would be “detrimental to the interests of the United States.” But the statute does not specify what if any evidence or procedure must support his proclamation.
In the fierce litigation against the 2017 entry ban that culminated in the Supreme Court’s decision in Trump v. Hawaii, challengers developed numerous sophisticated and complex reasons for reading this provision narrowly. But the Court rejected all of them with an interpretation of 212(f) likely to stymie, or at least complicate, challenges to the COVID-19 proclamation or any follow-on orders. Indeed, in Trump v. Hawaii, the Supreme Court read section 212(f) as “exud[ing] deference to the president in every clause.” [1]
In fact, we consider it likely that Trump v. Hawaii is driving the administration’s latest efforts. Emboldened by the Supreme Court’s broad reading of 212(f), the Trump administration has begun treating that provision as an easy vehicle for the president’s restrictionist agenda. In October 2019, President Trump issued a 212(f) proclamation suspending the entry of would-be green card holders who cannot show they would have or could afford health insurance once they arrived in the United States—to prevent them from financially burdening the health care system of the United States. Now, the president has invoked the authority to limit large categories of legal immigration altogether. Looking forward, it would be safe to expect even more aggressive invocations of 212(f)’s suspension power if President Trump serves a second term in office.
Cracks in the Administration’s Statutory Framework?
But perhaps this COVID entry ban is different. Are there ways to distinguish it, or any future attempt, to bar legal immigration for purported economic reasons?
Trump v. Hawaii may leave one potential opening as a matter of statutory interpretation. The Court rejected Hawaii’s claims that the 2017 entry ban conflicted with the elaborate statutory scheme Congress had created to screen for security risks when admitting immigrants. But in so doing, it observed that the 2017 entry ban could be harmonized with the statutory framework for individualized vetting:
We may assume that §1182(f) does not allow the president to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the president from addressing deficiencies in the Nation’s vetting system . . . To the contrary, the Proclamation supports Congress’s individualized approach for determining admissibility. The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to make that determination. The Proclamation promotes the effectiveness of the vetting process by helping to ensure the availability of such information.
In other words, the Court treated the entry ban as complementing the INA’s security screening processes by suspending the entry of nationals from countries that were not providing reliable security information, as a kind of incentive to those countries to do better. To defend the COVID-19 proclamation on similar terms, the administration would have to show that its suspension of immigration through certain labor and family categories would somehow complement the processes by which immigrants in those categories are otherwise screened or admitted.
The proclamation itself appears to contemplate this sort of requirement, claiming that its suspension is necessary to complement existing procedures in our extraordinary economic times. Here’s the key passage, worth quoting in full:
Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak. The vast majority of immigrant visa categories do not require employers to account for displacement of United States workers. While some employment-based visas contain a labor certification requirement, because visa issuance happens substantially after the certification is completed, the labor certification process cannot adequately capture the status of the labor market today.
For reasons we explore in more detail below, we are skeptical that the Court will require more than this as a statement of complementarity, if it even regards complementarity as a necessary component of a 212(f) order (rather than just sufficient in the case of the 2017 entry ban). Moreover, we have expressed skepticism of this kind of intra-textual interpretation in the context of immigration law, not least because the structure of such an argument would also call into question the legality of countless other forms of presidential immigration law across history, including President Barack Obama’s deferred action initiatives.
But even if courts make quick work of this textual-structural attempt to distinguish the COVID-19 proclamation, there might still be arguments based on historical practice and statutory history that call into question the legal viability of the proclamation.
When it was enacted, section 212(f) had national security foundations. Congress adopted 212(f) in 1952 to replace some earlier wartime measures authorizing the president, during times of war, to restrict entry and exit from the United States. In the nearly seven decades since its passage, Section 212(f) has never been used solely to protect the domestic labor market and the job prospects of U.S. workers (or to guard against public dependency for health care for that matter). presidents such as Clinton, Bush, and Obama invoked 212(f) to target specific individuals or groups of individuals defined according to discrete security threats they might pose, or because of their involvement in human rights violations. Even if we were to reframe combating the virus as a “national security” matter, the use of 212(f) for that reason would still amount to a significant departure from past practice.
And yet, the statutory text itself does not contain a national security limitation. Remember, a president need only find that the entry would be “detrimental to the national interest.” Members of Congress who were opposed to 212(f)’s passage in 1952 complained about the breadth of power it conferred for precisely this reason. What is more, the very first use of 212(f), by President Ronald Reagan, swept much more broadly than the national security threats of the many orders that followed. He suspended the entry of Haitian migrants fleeing dictatorship and economic collapse through the Caribbean basin, to prevent them from arriving on the coast of Florida.
The import of this history is ambiguous, underscoring how difficult it can be to build an argument based on past practice. On the one hand, far from responding to a sudden and uncontrolled influx, as President Reagan did, President Trump’s order purports to stop a very orderly process of legal immigration that already involves extensive screening, including to ensure that non-citizens being sponsored by employers would not be displacing American workers.
But in Trump v. Hawaii, the Court rejected the argument that the INA’s orderly system for individualized screening of immigrants for security risks meant the president had abused his 212(f) authority. More to the point, given that the president’s rationale for his new suspension is economic, the Haitian example could even provide some quasi-precedential support for Trump. President Reagan’s proclamation noted that the Haitian outmigration was straining law enforcement resources and threatening the “welfare and safety” of communities in South Florida. More generally, the interdiction policy was arguably motivated by political opposition to the fiscal and other burdens many people believed at the time a mass influx would impose. As the Supreme Court emphasized in Trump v. Hawaii, the “argument about historical practice is a double-edged sword.” (slip op p. 20). As more and more different sorts of orders, with different justifications and scope, pile up, the harder it becomes to contend that the statutory power has been used in one particular way that should be treated as probative of the statute’s meaning.
Demanding Policy Rationality from the Executive Branch?
Even if the president’s proclamation does not exceed his statutory authority under 212(f), there remains the question whether the suspension order is a rational policy response to the COVID-19 crisis. We could fairly and reasonably question the connection between the suspension of immigration by new permanent residents and the protection of U.S. workers during a severe and protracted economic crisis. Claims along these lines already have begun to proliferate. We too think the connection is highly dubious—a dangerous distraction from economic policies that would truly assist devastated people across the country.
But even if the policy makes little sense as a matter of labor economics, we are skeptical that the Supreme Court would engage in any serious rationality review of the suspension proclamation. Such claims are likely to do little more than sharpen the political debate.
There are two serious obstacles to any meaningful rationality review. The first is Trump v. Hawaii itself. In that case, the Court was very clear that any request for searching inquiry into the persuasiveness of the president’s justifications was inconsistent with the broad text of 212(f), as well as the traditional deference owed the president in assessing risks to the nation (slip op. 13). What is more, in its constitutional analysis in that same opinion (in response to claims of illegal discrimination under the Establishment Clause), the Court came close to complete and total abdication of scrutiny. We vigorously criticized this approach when the decision came down. But if the Supreme Court was unwilling to engage in any meaningful rationality review in Trump v. Hawaii, when individual rights of racial equality and religious freedom were arguably at stake, it is hard to imagine it seriously scrutinizing the rationality of the current proclamation.
To be sure, one of the arguments for deference in Trump v. Hawaii—that the entry ban implicated core national security concerns—arguably does not apply here. Yet even if that means that the Trump v. Hawaii framework would not apply, there is a second obstacle to meaningful rationality review. That obstacle flows from the fact that section 212(f) suspension orders are issued by the president himself rather than other executive branch officials. While rationality review is relatively common in many administrative law contexts, it is extremely rare in this domain. The Administrative Procedure Act does not apply to the president. Thus, it won’t matter that the proclamation, if it saves any jobs for U.S. workers, is likely to have a vanishingly small effect on any recovery, which will be protracted across years. And it won’t matter that the order is both over-inclusive (by suspending the entry of immigrants who clearly won’t displace U.S. workers) and under-inclusive (by permitting the continued entry of temporary workers for all sectors of the economy). Unfortunately, the kind of hard look review that litigants and courts have demanded in cases like the challenge to president Trump’s DACA rescission, and that resulted in the invalidation of the administration’s attempt to add a citizenship question to the census, cannot be used to demand evidentiary support and proof of reasoned deliberation.
This exceptional treatment of presidential orders may be misguided. And lawsuits demanding that the president engage in evidence-based decision-making before exercising his enormous power could help foster doctrinal evolution over the long haul. Even if there are good reasons to resist the application of the ordinary administrative standard of review to presidential actions, there are plenty of reasons, when the president has invoked emergency powers, for the judicial branch not to retreat to deference but instead to demand more than a veneer of rationality. In emergencies we should always be alive to the incentives political actors have to exploit uncertainty and danger to advance policies that would not be achievable in ordinary times. The possibility that emergency acts become entrenched or hard to undo once the emergency has passed would also justify the search for a true fit between emergency circumstances and presidential response.
Even if courts refuse to test the rationality of the president’s reasons for suspending the entry of most permanent residents, we think it remains crucial to understand why such a policy will have very little effect on our economic recovery or on the wellbeing of U.S. workers. The policy’s likely trivial labor market consequences highlight the truth that the order is a transparent political stunt—one intended to exploit a real crisis in order to advance President Trump’s restrictionist immigration agenda. Indeed, even if all permanent immigration to the United States were stopped, the notion that closing the United States off to foreign labor is the answer to economic devastation seems like a self-destructive form of missing the point, or a cover for a far more sinister point, in keeping with the twin objectives of exploiting immigrant labor without creating a path to permanent status and integration for mostly non-white immigrants.
Such clarity could even come through failed litigation, which would force the administration like no other process to justify its actions.
Pathways Forward
In the absence of a heightened standard of review, are there ways to resist the now steady and unprincipled flow of broad-ranging 212(f) orders coming out of this White House? This latest order, and potential further attempts to expand it to other forms of immigration, still seem too audacious to be sustained. The notion that the president has the authority to swallow the immigration code whole by invoking section 212(f), or even preempt one of the major streams of immigration contemplated by Congress, seems shocking and dramatic. Legislators in 1952 objected to section 212(f) when it was proposed for this precisely reason—because it would enable the president to undo Congress’s work.
One court that has heard a challenge to the 212(f) order requiring proof of ability to buy health insurance has called the statutory provision into question on the ground that Congress doesn’t have the authority to delegate this kind of power to the president. We leave aside for now the viability of a non-delegation challenge to 212(f), not least because this statute would be an overly charged vehicle through which to revive a question of great significance to the entire administrative state. We emphasize instead that this COVID-19 proclamation, and any similar crisis-inspired policies, must be met with more than legal and constitutional analysis. Indeed, one of the key lessons of our book is that we should be wary of over-reacting to political crises by elaborating legal doctrines that hamstring the presidency when the underlying problem is deep political disagreement.
The COVID-19 proclamation gives us yet one more reason to call for an amendment to section 212(f) and to realize that the threat comes not just from the president himself, but from the absence of congressional response. In a recurring theme of the Trump administration, we’re coming to understand just how many statutory schemes contemplate a wide-ranging policy role for the president with little but the weight of past practice and self-imposed restraint to limit the powers’ exercise. But 212(f), by its terms, and as it has been read by the Supreme Court, comes as close as any to a presidential suspension power. This delegation of power ought to be radically revised—both to narrow its substantive reach and to impose procedural requirements of the sort that we have come to expect from the administrative state when executive branch officials adopt hugely important policies that affect the lives of so many.
The response to the COVID-19 order must also entail a political repudiation of restrictionism and isolationism. Getting the facts straight about how the proclamation is unlikely to achieve its purported goals will be part of that conversation. But much of the immigration debate is impervious to facts. The debate at its core is about values, ideology, and cultural struggle.
More generally, among the big questions coming out of the COVID-19 crisis will be whether the country and its political system still appreciate the advantages that come with global interdependence, and indeed its necessity. The politics of immigration, in the United States and around the world, could shift ever more toward harsh restrictionism, as part of the gathering nationalist authoritarianism that has marked the last several years. Or, we could shift toward greater solidarity with people across borders. Immigration and asylum restrictions being put into place around the world during the coronavirus crisis will require us to think hard about how we are going to conceptualize the border once we come out of our public health isolation.
Continued insistence on rationality now, regardless of how any litigation turns out, remains one way of keeping a check on abuses of power and guarding against slippery slopes. But lawyers’ tools will be no substitute for a bold, well-communicated vision for the future that ties the interests and sympathies of Americans to the world outside our borders. Crafting that vision and communicating its value will be part of the hard work of emerging from our personal and national bunkers.
[1] We should note one crucial caveat about the statute: Recall that 212(f) is “outward facing.” Section 212(f) does not permit the president to attempt to suspend immigration adjudications for individuals already inside the United States. Through a process called adjustment of status, tens of thousands of temporary immigrants already inside the United States can petition to become permanent residents, and 212(f) simply does not permit the president to suspend these processes (though they may be delayed if immigration officers are shuttered for health reasons).