Written by Sheila Sheng, Esq., Associate Attorney.
President Donald Trump issued a Proclamation on April 22 (“April 22 Proclamation”) barring certain individuals from entering the U.S. as Immigrants for at least 60 days because of the coronavirus (COVID-19) pandemic.
These presidential proclamations, in an attempt to curtail or encroach the existing immigration system, are no strangers to us in the current climate. A question naturally emerges in our minds when it comes to these proclamations: how much power does the President really have?
Many perhaps recall that the Supreme Court of the United States (“the Supreme Court”) gave a green light to President Trump’s travel ban for predominantly Muslim countries, showing more deference to presidential immigration-related power than previous in a 2018 decision, Trump v. Hawaii. Under this ruling, the question for us has become: did the President exceed his authority in issuing this April 22 Proclamation?
The President originally wrote April 20 on Twitter that he was planning to “temporarily suspend” all immigration into the United States. However, the actual Proclamation, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”, which became effective on April 23, 2020, impacts only a very narrow set of foreign nationals – specifically those entering the country for the first time as U.S. permanent residents. The Proclamation explicitly applies to foreign nationals who:
- Are outside the United States on the effective date of the Proclamation;
- Do not have an immigrant visa that is valid on the effective date of the Proclamation; and
- Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil or an advance parole document) that is valid on the effective date of the Proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
It is important to keep in mind that the Proclamation does not apply to nonimmigrant visa holders such as H-1Bs, L-1s, TNs, E-2s and other temporary visa categories. The Proclamation also does not impact current U.S. permanent residents (green card holders) or individuals who are in the U.S. applying for adjustment of status to become permanent residents. Further, the need for an extension or modification of the Proclamation is said to be re-evaluated based on economic conditions after the original 60-day time frame expires in June.
Proposed Justification & Authority for the April 22 Proclamation
Trump claimed national interest justification in issuing the April 22 Proclamation. Specifically, he stated that, because of the coronavirus (COVID-19) outbreak, “the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.” He claimed the Proclamation would help protect “all workers and potential workers,” but especially those who “are likely to bear the burden of excess labor supply disproportionately.”
The statutory authority Trump relied on, to support the Proclamation at issue, included Section 212(f) of the Immigration and Nationality Act, which grants the president broad authority to suspend entry of foreign nationals into the U.S., reaffirmed by the Supreme Court in Trump v. Hawaii.1 The full text reads:
“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 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.” 8 U.S.C. § 1182(f).
Trump also resorted to Section 215(a) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1185(a). However, § 1185(a) is a more general provision that confers no additional substantive authority and cannot be read to displace the more specific § 1182(f). § 1185(a) states that, “[u]nless otherwise ordered by the President, it shall be unlawful . . . for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 2
Trump claimed that he was issuing the measure to “help put unemployed Americans first in line for jobs as America reopens.” However, in the short term, the new Proclamation will not substantially alter the status quo for foreign workers because of border and U.S. Embassy/Consulate closures which were effective prior to the Proclamation.
In fact, it will have a more perceivable impact on family-based immigration, rather than employment-based immigrant visas contrary to Trump’s stated intentions. Foreign nationals who will be applying for employment-based green cards are most often already working inside the United States and become lawful permanent residents (LPR) by applying for adjustment of status. As mentioned previously, that process has not been affected by the latest Proclamation, nor does he have the authority to ban such process.
A recent study shows that approximately 93 percent of the 250,000 cap-applicable family-based green cards per year are awarded to foreign nationals coming from abroad. Meanwhile, “four times as many employment-based green cards went to immigrants becoming permanent residents from within the U.S. than to those applying from abroad in fiscal year 2019, according to data published by the U.S. Department of Homeland Security.”
Therefore, practically speaking, because the Proclamation is essentially limiting the family-based green card issuance, it may instead lead to the issuance of more employment-based visas, which is not in alignment with Trump’s stated primary purpose of the limitations imposed by the Proclamation. It will in fact do little to provide relief to unemployed Americans, nor to boost the economy recovery after the country reopens from COVID-19 pandemic.
In total, Migration Policy Institute estimates that the Proclamation could impact around 26,000 green-card seekers per month. Bearing the Proclamation in mind, the question that naturally comes is how much power was actually vested into the President of the United States over immigration law.
Scope of Presidential Power over U.S. Immigration Law and the Proclamation
President Trump has been historically relying on his “plenary power” over immigration law as the President of the United States to ban immigrants from entering into the U.S. border under § 1182(f), which seems to be reaffirmed by the Supreme Court in upholding the travel bans in Trump v. Hawaii. However, presidential power over immigration is not without boundaries under the well-established non-delegation doctrine, and plenary power doctrine under a historical approach.
To better approach non-delegation doctrine, it is important to start with an enshrined constitutional principle–separation of powers. Separation of powers is a fundamental inherent principle deeply rooted in the Constitution dealing with the intertwined relationship between the three independent branches of government: the Legislative, the Judicial, and the Executive, under Youngstown.3 The system of checks and balances limits the branches’ ability to exert power over the other branches.4 Checks and balances are essential to the effective functioning of government, which ensures individuals are protected.5
The non-delegation doctrine is often raised in separation of powers cases to prevent untenable grants of power from one branch to another, which mandates that Congress may not transfer its legislative power to any other branch of government, with an exception for Congress to delegate certain limited law-making authority to the Executive Branch in cases where Congress cannot immediately or directly act to deal with the problem through the Necessary and Proper Clause.6 Youngstown provides the framework for assessing the validity of the Proclamation at issue. As the decision explains, “[t]he President’s power, if any, to issue [an] order must stem either from an act of Congress or from the Constitution itself.” 7 In his concurrence, Justice Jackson set forth what has become an influential tripartite framework to evaluate the legality of presidential action.
Under the Youngstown framework, if the Proclamation is in direct contradiction with expressed or implied will of Congress, evidenced by statutes or legislative history, presidential power is at its lowest ebb, and therefore unconstitutional if he does not have his own constitutional power. Given congressional power in this arena, it is therefore crucial to understanding what power, if any, Congress has delegated to the Executive. As warned by the 9th Circuit in reviewing the injunction regarding a related Proclamation issued by President Trump that prohibits asylum seekers on the Southern border from applying for asylum in the US if they have not applied in Mexico or Guatemala, “[i]n combination with the Rule, it does indirectly what the Executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, “legislate from the bench,” neither may the Executive legislate from the Oval Office.”8 It reminds us to explore what power Congress possesses over immigration, and how much power the Congress delegated to the President by enacting § 1182(f).
Plenary Power Doctrine
In an essence, the so-called “plenary power doctrine” theoretically shields any legislative or executive actions related to immigration law from judicial review. Understanding the role of deference in immigration law requires explaining the concept of deference generally and briefly retelling the history of the doctrine. Since its origins in the nineteenth century, the plenary power doctrine has taken on different meanings: initially, it meant absolute federal power over borders, as well as the nonjusticiability of challenges to immigration law,9under a string of cases, first established in Chae Chan Ping.10 Through the twentieth century, it evolved from strict nonjusticiability to a highly deferential standard of review.11 Specifically, the Supreme Court has ruled that it will uphold decisions excluding noncitizens from entry so long as the government advances a “facially legitimate and bona fide” reason for the exclusion.12 While developments in constitutional law over the last century have eroded the plenary power doctrine’s scope, especially as to procedural due process claims and challenges to indefinite detention, courts have not extended these developments to first-time visa applicants with no existing ties to the United States.13
However it is important to note that this “Plenary Power” belongs to the Congress to regulate immigration, not the Executive branch.14 The Chinese Exclusion Case announced plenary power in the course of considering the validity of a congressional act.15 The Supreme Court has repeatedly noted that “over no conceivable subject is the legislative power of Congress more complete.”16
By enacting § 1182(f), Congress delegates very broad power to the President over immigration law. Yet, any constitutionally derived presidential authority to regulate immigration is, at best, shared with Congress. Absent “conclusive and preclusive” constitutional power, the President has no power to act unilaterally, in contravention of congressional intent and existing statutes. 17
Even the Supreme Court recognized that, “[w]e may assume that §1182(f) does not allow the President to expressly override particular provisions of the INA. The President, may supplement the INA, but he cannot supplant it.”18 The 9th Circuit has also recently stated in East Bay Sanctuary Covenant that “[w]here Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in [dealing with] aliens, the Attorney General may not abandon that scheme because he thinks it is not working well. . . continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.”19
As Applied to the April 22 Proclamation
If there is one principle that can be summarized from the above-mentioned doctrines, it is that the Executive cannot rewrite immigration laws in contradiction to congressional goals, without a valid “national interest” justification, even under the very deferential judicial review standard. Through the lens of this principle, one may find the April 22 Proclamation is strikingly similar to Presidential Proclamation No. 9945 regarding health care, in that the two share the same “national interest” justification of “protecting long-term economy”, in the attempt to rewrite the existing immigration laws.
The 9th Circuit unambiguously defined the scope of presidential immigration power, in a recent decision enjoining Presidential Proclamation No. 9945 regarding healthcare, “§ 1182(f) does not provide the President with limitless power to deny visas to immigrants based on purely long-term economic concerns.” According to the court, the Proclamation No. 9945 is different from the one in Trump v. Hawaii, in that the sated objective in the travel ban was “within the traditional spheres authorized by § 1182(f): in the context of international affairs and national security, and working in tandem with the congressional goals of vetting individuals from countries identified as threats through an agency review.” In contrast, the healthcare Proclamation is really to punish immigrants under a speculative argument to solve the problem of uncompensated healthcare costs, for which the government has no substantive proof. While the travel ban had proven justification with DHS’ comprehensive evaluation of risk for every country, the healthcare Proclamation did not have any sort of evidence supported by data-driven analysis to prove that it will reduce uncompensated healthcare costs. 20
Similar to Proclamation No. 9945, the April 22 Proclamation has no proven justification. It seems to be based on an uncorroborated assumption that accepting immigrants into the United States is harmful to the economic recovery, increasing the competition in the labor market. As a matter of fact, economic research finds the premise of the executive order – that reducing legal immigration would lower the U.S. unemployment rate – is flawed. “Having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group,” according to a National Foundation for American Policy. “Immigrants may boost consumer demand, start their own businesses, and reduce offshoring . . . of manual-labor intensive jobs in the U.S,” as pointed out by a recent Forbes article.
Another theory raised by the government is that, the President does not have to follow the administrative rule-making procedure, because immigration matters involve foreign affairs, which is a power belonging to the President. However, the 9th Circuit also slammed that argument, ruling that broadly citing to the Rule’s immigration context is insufficient to invoke the foreign-affairs exception so that the President does not have to follow the traditional pathways of public rulemaking.21 The healthcare Proclamation deals with a purely domestic economic problem: uncompensated healthcare costs in the United States, and as stated by the court, “in domestic economic matters, the national security and foreign affairs justifications for policy implementations disappear, and the normal policy-making channels remain the default rules of the game.”22
Comparing the three Proclamations side by side, this “green card ban” seems to be less likely to stand in courts. With the instruction given above, it becomes clearer that without national security and foreign affairs justifications, President Trump will have to go through the normal policy-making procedures to change the immigration landscape, in domestic economic sphere, not through Proclamation. Since Congress fixed the number of visas in 1990, and promulgated detailed legislation regarding the issuance of different nonimmigrant and immigrant visas, it is hard to imagine President Trump can bypass the administrative rule-making procedure to make changes to the issuance of visas based on purely economic reasons, under the current legal frame.
Recent Development Challenging the April 22 Proclamation
A suit was filed by AILA, the Justice Action Center, the Innovation Law Lab, and the Latino Network, in the United States District Court for the District of Oregon, requesting a temporary restraining (TRO) order to halt implementation of the April 22 Presidential Proclamation. The class the restraining order is trying to protect comprises of certain underage visa applicants from receiving visas or may extinguish the special preference they received by being under the age of 21 and in preference category F2A. Plaintiffs also argued that the President is trying to rewrite the laws against the Congress’ intention.
On April 29, 2020, District Court Judge Michael H. Simon issued an order denying the TRO motion. However, the Judge’s decision rests on the motion’s form, not its substance. Specifically, the judge states that Plaintiffs’ challenge to the April 22 Proclamation should be brought as a separate challenge specific to that proclamation, rather than joining two motions together.
As of May 15, there had yet to be other rulings on the Proclamation. Additional lawsuits could be filed, as well.
1.Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018).
2. 8 U.S.C. § 1185(a)(1).
3. See U.S. Const. art. I-III; See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
4. See Michael Fisher, Patchak v. Zinke, Separation of Powers, and the Pitfalls of Form over Substance, 13 Duke J. Const. L. & Pub. Pol’y Sidebar 85, 85 (2018).
6. Vale Krenik, “No One Serves Two Masters”: A Separation of Powers Solution for Conflicts of Interest Within the Department of Health and Human Services, 12 Tex. Wesleyan L. Rev. 585, 600 (2006) (quoting The Federalist No. 47, at 139 (James Madison) (Roy P. Fairfield ed., 1981)); See also U.S. Const. art. I-III.
7. Youngstown Sheet, 343 U.S. at 585.
8. East Bay Sanctuary Covenant v. Trump, 932 F. 3d 742, No. 18-17274 (9th Cir. 2019).
9. Gerald Neuman, Neither Facially Legitimate Nor Bona Fide-Why the Very Text of the Travel Ban Shows It’s Unconstitutional, JUST SECURITY (June 9, 2017), https://www.justsecurity.org/41953/facially-legitimate-bona-fide-why-unconstitutional-travel-ban/ [https://perma.cc/CB5N-LKRE].
10. Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 606-07 (1889).
11. Bhargava Ray, Shalini, Plenary Power and Animus in Immigration Law (August 1, 2018), 80 Ohio State Law Journal 13 (2019); U of Alabama Legal Studies Research Paper No. 3131044. Available at SSRN: https://ssrn.com/abstract=3131044.
12. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).
13. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 581 (1990).
15. Chae Chan Ping, at 606 (1889).
16. Fiallo v. Bell, 430 U.S. 787, 792 (1977) (emphasis added).
17. Youngstown, 343 U.S. at 638 (Jackson, J. concurring).
18. Hawaii, 138 S. Ct. at 2408.
19. East Bay Sanctuary Covenant v. Trump, 932 F. 3d 742, No. 18-17274 (9th Cir. 2019).
20. See John Doe #1 v. Trump, No. 19-36020 (9th Cir. 2020).