January 27, 2021

Immigration Ban in US in times of COVID-19 Pandemic: An abuse of Presidential Authority?

Abstract

In the time of Covid pandemic, the World Health Organization in pursuance to the provisions of International Health Regulations (IHR), an international agreement which has been adopted internationally to prevent, protect against and provide a public health response to the international spread of disease without unnecessary interference with international traffic and trade, on January 20, 2020 issued temporary guidelines to help the member states at this time of crisis, which included its advice against the application of travel or trade restrictions for countries that are suffering from Covid- 19 pandemic. However, these guidelines are merely guiding and non binding in nature and hence, US, a member state imposed restrictions on travel and immigration operations. Though the ban is legal in stuatory terms but its rationality in such a critical situation is questionable. The author reviews the same with help of stuatory framework and points out the loopholes in the current framework.

Introduction

On the night of April 20, 2020, US President Donald Trump tweeted about his signing of an executive order, temporarily suspending immigration to the States in response to the invisible enemy of Coronavirus. This tweet turned into headlines that the US was about to end all the immigration services. However, the formal proclamation issued two days later was considerably narrower in scope, even to the apparent disappointment of some of his conservative allies. The actual proclamation calls for a 60-day ban on new permanent residents entering from abroad, other than those who are spouses or children of US citizens. There have been reports from various experts which suggest that presidential advisors have big plans to expand on this proclamation in the coming time, thus advancing their agenda to transform the US from a country of immigration to a demographically altered, fortress walled off from the world. The article aims to review and discuss the legality of this proclamation and whether it’s an abuse of the US presidential authority.

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Critical Analysis: Legality of the Proclamation

The question of legality arises from the fact that this latest presidential proclamation is quiet unprecedented in American history. Even the far narrower restrictions actually announced assert presidential power over immigration in ways never seen before. It can be concluded that the president long has been the immigration policymaker in chief. But no president has ever attempted to suspend immigration on the scale that Trump just proclaimed. Instead most of the US presidents have pushed back against movement to sharply limit or end immigration by opposing or vetoing restrictionist legislation or exhorting the public to see the benefits of immigration.

But the simple fact that this proclamation is unprecedented does not make it illegal. To support this proclamation the president relied on the very same statutory authority he invoked to bar the entry of nationals from several Muslim- majority states[1]. Section 212 (f) of the Immigration and Nationality Act (INA)[2] which provides that ‘ whenever the president finds that the entry of any 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 non-immigrants”.

Whereas the 2017 entry was justified on the grounds of security concerns and prevention of terrorism, the COVID-19 proclamation is called on the grounds of economic catastrophe, justifying that immigration must be suspended temporarily to protect the American workers from fierce competition in the labor market due to the pandemic and aggressive mitigation measures. No matter what we think of the proclamation as an economic policy, there can be no denying to the fact that it certainly differs in one key aspect from other immigration orders which is public health emergency that US is facing as it is the worst hit country in the world and the same has given rise to a severe economic crisis whose shape has not been fully developed. Trump’s past declaration of crisis to justify extraordinary immigration action have been fabricated and grossly overbroad.

Enacted in the early days of the cold war as part of the landmark INA, section 212 (f)’s suspension power was understood as a breathtaking delegation of power in the hands of president. By its very term, the provision appears to contemplate scenario in which the president might literally seal all borders to all the non- citizens. Though the provision does require the president to determine the injury to the interest of US before banning the entry of immigrants, it does not require him to provide for any evidences, material on which his proclamation is based.

In the fierce litigation against the 2017 entry ban that challenged the validity of president’ action under Section 212 (f) of INA, the Supreme Court of USA read section 212 (f) as exuding deference to the president in every clause and upheld the validity of the provision. Here we should note one crucial caveat about the provision, that it 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).

In fact, we can consider it likely that the case is the driving force behind the administration’s latest efforts. Emboldened by the broad reading of the provision by the Supreme Court, Trump administration has begun treating it as an easy vehicle for the president’s restrictionist agenda. Not long ago, in October 2019, a proclamation was issued under the same section, suspending the entry of would- be green card holders who cannot show they would have or could afford health insurance once they arrives in the US to prevent them from financially burdening the health care system of the country. Now, the president has invoked his presidential authority to limit large categories of legal immigration altogether.

Loopholes in the Administration’s Statutory Framework

The case of Trump v. Hawaii[3] has left the potential opening as a matter of stuatory interpretation. In this case the court rejected the claim of the respondents (Hawaii) that 2017 entry ban conflicted with the elaborate stuatory scheme Congress had created to screen for security risks when admitting immigrants. However, in doing so, it observed that the entry ban could be harmonized with the stuatory framework for individual vetting which means that the court treated the entry ban as complementing the INA’s security screening processed by suspending the entry of nationals from countries that were not providing reliable security information as kind of incentive to those countries to do better. On the same line, 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.

Moreover, there are still arguments based on the historical practice and statutory history of US that call into question the legal viability of the proclamation as when enacted. Section 212 (f) had its foundations on the pretext of national security. In nearly seven decades since its passage, the provision has never been used for the sole purpose of protecting the domestic labour marker and job prospects of US workers or to guard against public dependency for health care for that matter. Presidents such as Clinton, Bush and Obama invoked it to target specific or groups of individuals who might pose serious security threats or because of their involvement in blatant human rights violations. Even if we assume combating the virus as a matter of ‘national security’, the use of 212 (f) for that reason would still amount to a significant departure from the past practice.

And yet, statutory text itself does not contain a national security limitation. Remember, president needs to be satisfied of the fact that the entry of the immigrants would be detrimental to the interest of the nation. Member of Congress opposed the passage of this provision on the ground of its over- broadness. The clear misuse of the same for the very first time was done by President Ronald Reagan when 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.[4] The impact of this history is ambiguous, underscoring how difficult it can be to build an argument based on the past practice. On one hand, far from responding to a sudden uncontrolled influx, as what President Reagan did, Trump’s order purports to halt 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.[5] More to the point, given that the rationale president 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 Court emphasized in Trump case that the he “argument about historical practice is a double-edged sword.” 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.

Rational or the Abuse of Presidential Power?

Even if the president’s proclamation does not exceed the statutory authority under 212 (f), there still remains question as to whether the suspension order is a rational policy response to the COVID- 19 crisis. There is a fair reason to question the connection between the suspension of immigration by new permanent residents and the protection of US workers during a severe and protracted economic crisis. Even if the policy makes little sense as a matter of labour economics, it is skeptical that the Supreme Court would engage in any serious rationality review of suspension proclamation. There are two serious obstacles to the same. The first one is the precedent laid down in Trump’ case itself. In that case, the court was very clear that any request for searching inquiry into the persuasiveness of the president’s justification was inconsistent with the broad text of the provision. Now this obstacle flows from the fact that under 212 (f), the 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 as the provision of Administrative Procedure Act does not apply to the president.[6] And hence it won’t matter that the proclamation is likely to have a vanishingly effect on any recovery, if it save any jobs for American workers. Hence, demand of president engaging in evidence- based- decision making before exercising his enormous power could help foster doctrinal evolution over the long haul will help. 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. Even if courts refuse to test the rationality of the president’s reason for suspending the immigration of most of the permanent residents, it is still crucial to understand why such a policy will have very little effect on our economic recovery or on the well being of US workers.

The policy’s like trivial labour 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 US were stopped, the notion that closing the US off to foreign labour 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 labour 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.

The Way Forward

In 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 seems too audacious to be sustained. The notion that the president has the authority to swallow one of the major streams of immigration contemplated by Congress seems shocking and dramatic. The author emphasis 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 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, it can be understood as to 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 power’s 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.

Endnotes

[1]Executive Order 13768, ‘Protecting the Nation from Foreign Terrorist Entry into the United States’,82 FR 8977 (2017)

[2] Immigration and Nationality Act, § 212, cl. (f) [8. U.S.C. §1182 (f)] (1952).

[3] Trump v. Hawaii, 4. 138 S. Ct. 2392 (2018).

[4] https://www.washingtonpost.com/news/made-by-history/wp/2018/07/02/line-donald-trump-ronald-reagan-tried-to-keep-out-asylum-seekers-activists-thwarted-him/

[5] Id., ¶ 20.

[6] Valerie C. Brannon, ‘Protecting the Nation from Foreign Terrorist Entry into the United States’, Congressional Research Service (July 18, 2018), https://fas.org/sgp/crs/misc/LSB10172.pdf


Author Details: Manu Sharma is a student at Symbiosis Law School, Pune.

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