The Attorney General of New York is making preparations to challenge Trump’s executive order banning most immigrants from entering the US “temporarily” under INA 212(f) (8 USC §1182(f)). I am sure there are various other groups also interested in filing legal challenges.
The order can be found here.
Can the President ban
Some commentators suggest that INA 212(f) doesn’t give the President authority to end
all immigration. Here,
all has been placed in quotation marks since the EO does not ban all immigration anyway; certain categories such as spouses of US citizens are exempted. The idea is that bans based on 212(f) that are
too broad may not be allowable.
Yet, the text clearly says the President may suspend the entry of
all aliens or any class of aliens.
Some argue that, while the Trump v. Hawaii case established that the President may ban all aliens from particular countries, that it would be contrary to the INA for the President to indefinitely end the issuance of visas in entire preference categories – for example, as Trump is banning all F4 immigrants (brothers and sisters of US citizens) from entering the US (unless they qualify for an exemption based on being in the US already) this could be argued to contravene an imagined intent of Congress in enacting INA 201 and INA 203 of making at least 65,000 F4 immigrant visas available each fiscal year.
This argument is essentially about timing: it is clear from the statute that the President may ban
all aliens, but the argument is that this power could not be used to establish a ban of such duration that it would result in the visas allocated by Congress going wasted. I don’t think this argument is convincing. The statute does say the President can suspend entry
for such period as he shall deem necessary, which is pretty close to explicitly saying there’s no limit on the President’s discretion to set the duration of the suspension.
Is Trump’s use of INA 212(f) an unconstitutional delegation?
Congress is not constitutionally permitted to delegate its legislative power to the executive branch or any other entity, but may enact statutes that enable the executive branch to exercise discretion over policy, if it provides an
intelligible principle. For example, in INA 212(a)(9)(B), Congress banned aliens from entering the United States if they were unlawfully present for more than 180 days, but granted the Attorney General discretion to waive this inadmissibility in certain cases if it would cause extreme hardship to a US citizen or LPR relative. In this case, the executive is permitted to set policy regarding which aliens can receive waivers, but Congress provided the guiding principle that the standard of eligibility for such waiver must be based on a level of extreme hardship.
A recent case in the United States District Court for the District of Oregon concerned whether Trump’s use of INA 212(f) to bar the entry of aliens who could not demonstrate that they would be able to obtain certain types of health insurance coverage (Case No. 3:19-cv-1743-SI). The plaintiffs in this case argued that this use of INA 212(f) involved an unconstitutional delegation. The court agreed and granted a preliminary injunction.
The court’s opinion stated that INA 212(f) is overbroad in delegation, providing no intelligible principle for the Presidents exercise of discretion, since the only condition is that the President must find that the entry of aliens would be
detrimental to the interests of the United States. The court thus found that Congress cannot delegate power to the President in this manner. The defendants pointed out that Supreme Court precedent (Knauff v. Shaughnessy, 338 US 537 (1950)) established that the President’s inherent constitutional power over foreign affairs includes the power to restrict the entry of aliens (so that INA 212(f) confers little or no additional power upon the President but merely reaffirms power that the President already possesses). The district court’s opinion, however, was that such inherent power of the President over immigration does not extend to restricting immigration for domestic policy purposes (in contrast to e.g. national security or foreign relations concerns).
In my opinion, this type of argument, if it is raised in the cases concerning the present executive order, would not be likely to persuade the Supreme Court. I believe the Supreme Court would almost certainly find that the President’s inherent authority to restrict the entry of aliens is not limited only to situations implicate national security or foreign relations concerns.
Based on what we know about the current Supreme Court, I think it’s overwhelmingly unlikely that they would strike down the recent EO. In fact, I think it’s very likely that they would quickly reverse any stay of the EO issued by a lower court. I think it’s almost irresponsible for the mainstream media to give false hope to immigrants that a court challenge would be likely to succeed. Then again, there are actual legal experts who disagree with me, so take this with a grain of salt.