US president Donald Trump was on Twitter bright and early today, announcing at 7am that he plans to sign an executive order “prohibiting immigration into our Country.”
Although that statement appears to be an exaggeration, as the president’s order will reportedly halt some green card applications for at least 60 days, with exceptions, the American chief executive—married to an immigrant—has reason to believe his scheme will survive the inevitable legal challenges to come.
In June of 2018, the Supreme Court issued a ruling on what was colloquially known as Trump’s “travel ban.” The president’s executive order prohibited entry into the US for citizens from five Muslim-majority countries, Venezuela, and North Korea. The official reasoning for it was that these countries provided insufficient information to the US, making entry of their citizens a national security threat.
The state of Hawaii challenged the order unsuccessfully, and the court’s majority opinion showed Trump how he might proceed similarly in the future. Chief justice John Roberts wrote for the majority, explaining:
The President has lawfully exercised the broad discretion granted to him under [the US Code section] to suspend the entry of aliens into the United States. By its terms, [the section on inadmissible foreigners] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the Immigration and Nationality Act.
The court’s conservative wing felt that the president’s proclamation fell “well within” the comprehensive delegation of power granted to the president in matters of immigration.
Today, the makeup of the bench is slightly different but no less conservative. The travel ban decision was issued just before Anthony Kennedy—considered a “swing voter” though he wasn’t in this case—retired. Kennedy was replaced by the controversial conservative Brett Kavanaugh. So it’s likely that a ruling on the next order would also allow Trump’s plans to stand.
Standard of review
The high court majority noted in its 2018 decision that the sole prerequisite set forth in immigration law is that the president show that entry of foreigners barred by an order “would be detrimental to the interests of the United States.” The standard of review used was low—all Trump had to do was show a “rational basis” for his ban.
In the current situation, Trump is claiming that allowing immigration would harm American interests given the high rate of unemployment prompted by the coronavirus crisis. “By pausing immigration, we will help put unemployed Americans first in line for jobs as America reopens. So important,” the president said Tuesday. “It would be wrong and unjust for Americans laid off by the virus to be replaced with new immigrant labor flown in from abroad. We must first take care of the American worker.”
The court’s conservative majority would likely find that this basis is as rational as it needs to be to sustain Trump’s proposed immigration ban as long as his reasoning is laid out in the order. The previous travel ban had a 12-page explanation of the president’s rationale and the court found this sufficient.
Still, it’s not yet clear what section of the US Code Trump would rely on precisely to justify the unilateral suspension of some green cards. The New York Times reported that Justice Department lawyers are looking into the legal basis for such an order and were caught off guard by the president’s declaration, which was first made in a tweet on Monday.
The section relied upon for the travel ban does cite health reasons as a basis for finding certain foreigners inadmissible if they are “determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.” However, it’s not evident from reading the text that this could be the basis for a ban on a whole category of immigrants without any proof that those affected are actually infected with the coronavirus.
What is certain is that the president will face pushback from businesses. The Information Technology Industry Council issued a statement in response to the president’s initial Twitter declaration, writing:
The tech industry understands and values the need for public health protections due to COVID-19 and stands ready to work with the Trump Administration to address these challenges. We also recognize the profound toll the pandemic has had on American workers; however, the United States will not benefit from shutting down legal immigration. Tech workers–whether from the United States or another country–are playing an essential role in America’s response to COVID-19. They will be vital to the US economic recovery and must remain part of the workforce. We urge President Trump not to endanger the country’s economic recovery by closing its economy to the rest of the world.
At this point, with no actual executive order to analyze, attempts to understand just how the president will justify a decision to temporarily suspend immigration are just speculation. But based on recent history, it’s fair to say that the Supreme Court’s conservative majority will likely find the president has the power to act if he presents a rational basis for the proposed ban and provides some justification.