PRESIDENT TRUMP’S PROPOSED EXECUTIVE ORDER TO BAN IMMIGRATION WILL UNLIKELY BE WHAT HE TWEETED

At 10:06 pm Eastern on April 20, 2020, President Donald Trump stated his intent to assert the most sweeping policy for immigration in U.S. history, by tweet. This was later followed by a Whitehouse press conference on April 21, 2020, where he narrowed the scope to 60 days with possible extensions and to only target certain immigrants. He is expected to issue an Executive Order sometime this week, leaving many wondering whether he can do this, and if so, under what authority. While the Order has not yet been issued, this blog describes the potential elements of the Order, its impacts, and the legal authority for issuing such an Order.

By Kalpana V. Peddibhotla & Roujin Mozaffarimehr

President Trump’s proposed Executive Order is nothing more than a dog whistle intended to satisfy his base with no correlation to public health or in truth to preserving American jobs. 

Trump’s proposed border closing is guised under public health concerns over COVID-19. However, President Trump’s call to close the U.S. border seems contradictory to his tweets to “liberate” states by ending shelter-in place orders. Moreover, the President’s tweet does not seem to focus on stopping the spread of COVID-19 through people entering at our borders, and instead seems focused on continuing the narrative that immigrants harm our economy. There are several contradictory aspects to the President’s proposed policy. 

   1. “Liberating” states from shelter-in-place is contradictory to restricting immigration due to COVID-19.

First, his numerous tweets to the residents of several states, encouraging them to “liberate” themselves from shelter-in-place orders does not seem consistent with stemming immigration at our borders to protect the public from community spread of the virus. The virus has the equivalent ability to be transmitted in Michigan by individuals opposing social distancing guidelines as it would by individuals entering our airports or land borders. 

   2.  Immigration ban not correlated to protecting U.S. jobs lost due to COVID-19.

Second, to the extent that this policy is motivated by protecting U.S. jobs as stated in the President’s press briefing on April 21st, the proposed policy is unlikely to meet this goal, and not for the reasons we discuss below about how immigrants help to grow the economy, but actually because none of his proposals directly correlate to job protection. 

The President appears to carve out exceptions for certain temporary workers, but does not identify which ones. Further, he appears to carve out exceptions for the immediate family members of U.S. citizens, but not for Lawful Permanent Residents. He  seems to be primarily focused on preventing employment sponsored immigrants who are in their final stages of their Green Card process and are about to enter the U.S. on an immigrant visa. For this latter group, it’s important to note that their employers were typically required to first recruit for US workers before offering the job to foreign workers. (As discussed in the next section, those individuals who were waiting for their immigrant visa interviews at U.S. Consulates abroad, are already unable to attend those appointments due to actual public health reasons). 

As of this writing, it is still unclear who the Order will apply to. In particular, the exceptions may end up becoming the rule, and this may not apply in broad scope as initially asserted in the President’s tweet. 

3.  Current travel restrictions and reduction of immigration processing times are already limiting U.S. immigration and this proposed order is merely a dog whistle to President Trump’s base of supporters. 

Finally, this 60 day prohibition is nothing more than a dog whistle. All of our U.S. consulates abroad are currently closed, with closures rolling out beginning on March 13, 2020. Those measures were rightly taken in order to protect the health and safety of our consulate employees and visitors to the consulates. Several countries have limited or suspended air travel, including travel exiting their country. Premium processing of immigration applications has been suspended, which will further delay the issuance of new visas. These changes were taken primarily due to health, safety, and the plain logistics of administering our immigration system. In effect, there are and will be delays of 60 days for the majority of new immigrants entering the U.S. without this Order. 

For this reason, we assert that this Order is nothing more than a dog whistle. It is not correlated to either public health or employment security for Americans, and is being done at a time when immigration to the U.S. is already extremely limited. It is though a dangerous precedent, vesting unbridled power into an Executive Branch that is willing to take apparent bold actions that do not relate to the actual reasons for why these powers were created. 

Under what legal authority does President Trump have to halt immigration?

U.S. Immigration is primarily governed by the Immigration & Nationality Act (“the INA”), though there are other areas of law that regulate our borders, and there are multiple agencies that implement those laws. Section 212(f) of the INA specifically provides the President with the power to suspend entry of immigrants to the U.S. It states: 

INA Section 212(f). Suspension of entry or imposition of restrictions by President

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 , 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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

(Emphasis added). 

Additionally, Title 42, Section 265 of the U.S. Code provides:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

While this section is directed to powers enabling the Surgeon General to act, implied within this is that the President can direct the Surgeon General to take such actions. There are reports that Customs and Border Patrol (CBP) Agents have already invoked “Title 42” to turn away immigrants seeking asylum to the U.S. just shortly after the National Emergency was declared on March 13, 2020.

Finally, the Supreme Court recently held in the travel ban case, Trump v. Hawaii (585 U.S. ___(2018)) that the president “..lawfully exercised the broad discretion granted to him under 8 U.S.C. Sec. 1182(f) to suspend the entry of aliens into the United States…” In particular, Justice Roberts described that Section 1182(f) of the INA “exudes deference to the president in every clause,” giving him the “broad discretion to suspend” the entry of noncitizens into the United States when such entry would be detrimental to the interests of the United States.

Is there similar precedent of a U.S. President broadly halting U.S. immigration?

No U.S. President has ever broadly halted all U.S. immigration; not even during prior pandemics or during times of war.

However, previous presidents have done so for certain classes of immigrants, including this President under the Travel Ban discussed above. Prior presidents have suspended entry of certain classes of immigrants on a limited scope and for limited periods of time. For example, President Ronald Reagan suspended the entry of Cuban nationals, certain Panamanian nationals, and Nicaraguan nationals. These restrictions were in response to political conflicts. Presidents Bill Clinton and George W. Bush restricted the entry of certain persons as a result of political conflicts across the globe during his presidency. President Barack Obama also issued a series of travel restrictions on the basis of political conflict, human rights violations and abuses, as well as security concerns for certain classes of immigrants. However none of these travel restrictions ever came close to broadly halting immigration.

Immigrants are “Essential Workers” in the fight against COVID-19
We would like to remind our readers of the tremendous contributions that immigrants are currently making in our fight against COVID-19. For example, more than 25 percent of physicians in the United States are foreign-born. According to the Cato Institute, immigrants make-up approximately one-third of California’s “Essential Workers.” The New American Economy states that nearly 280,000 undocumented immigrants work in healthcare, and 62,600 DACA-eligible individuals are healthcare workers.

Leaving aside the contributions of immigrants to fighting COVID-19, immigrants have historically been critical to the growth of the U.S. economy. 

Conclusion

While we have not seen the ultimate Order, it is certainly concerning that President Trump’s policy premise is not correlated to our public health and only seems to relate to this Administration’s ongoing offensive against immigration to the U.S. 

 

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^[1] https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html

^[2]https://www.uscis.gov/working-united-states/temporary-workers/uscis-announces-temporary-suspension-premium-processing-all-i-129-and-i-140-petitions-due-coronavirus-pandemic

^[3] 8 USC 1182(f).

^[4] See https://www.scotusblog.com/2018/06/opinion-analysis-divided-court-upholds-trump-travel-ban/; See Also, Trump v. Hawaii (585 U.S. ___(2018)).

^[5] See 1985, Oct. 10 – Reagan Proclamation 5377, 50 Fed. Reg. 41329; See Also, 1986, Aug. 26 – Reagan Proclamation 5517, 51 Fed. Reg.30470

^[6] See 1988, June 14 – Reagan Proclamation 5829, 53 Fed. Reg.22289 (Suspending entry of Panamanian nationals who took certain actions in line with the policies of Manuel Antonion Noriega and Manuel Solis Palma).

^[7] See1988, Oct. 26 – Reagan Proclamation 5887, 53 Fed. Reg. 43184 (suspending entry of officers of the Nicaraguan government or the Sandinista National Liberation Front).

^[8]  https://fas.org/sgp/crs/homesec/R44743.pdf (pp. 15-16)

^[9]  Id.

^[10] Id.

^[11] https://www.nytimes.com/2020/04/13/us/coronavirus-foreign-doctors-nurses-visas.html

^[12] https://www.cato.org/blog/immigrants-are-about-1/3-californias-essential-workers

^[13] https://research.newamericaneconomy.org/report/undocumented-immigrants-covid-19-crisis/