At 10:06 eastern time last night, the President casually tweeted perhaps the most controversial statement of his presidency (which is saying a lot) –
In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!
— Donald J. Trump (@realDonaldTrump) April 21, 2020
The news apparently caught people in government by surprise though the New York Times reported that some in the White House have been working on the idea for a couple of weeks. We don’t know much more regarding the details though the Times’ Maggie Haberman noted on Twitter that the order is expected to have carveouts for health care and agricultural workers. But we ultimately need to see the language before we can say for sure what the order means.
As for how the President can do this, the Administration will likely cite Section 212(f) of the Immigration and Nationality Act which states
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.
This is the same section cited in the Muslim ban case that went to the Supreme Court. The plain language appears to focus on individuals – “any aliens” and any group of people – “any class of aliens”. That was stretched widely to include all people in a country for purposes of the Muslim bans. The President, in that case, cited national security concerns related to terrorism and provided a country-by-country analysis that the Supreme Court felt justified its decision to uphold the ban. Note that the President had to re-work his executive order two times before finally surviving legal action.
Imposing a ban on virtually all immigrants is likely going to be much harder to justify to a judge. Section 212(f) doesn’t say the President can ban “all” aliens which is what the President has indicated he intends to do. And it would appear to trample on Congress’ authority to set immigration law. So I would be surprised if the order survives an initial challenge in front of a federal judge.
In the Muslim ban case, the courts only allowed the action to be in effect for a few days before it was shut down. It took 18 months for the Supreme Court to issue a decision. The Supreme Court could choose to intervene quickly here, but with an election 195 days away, they may decide not to inject themselves in the middle of a campaign (something that will happen already with the upcoming DACA decision).
As for what this order can and cannot do, we have the Muslim bans to examine for precedent. The word “entry” in the statute would cover visa processing versus applications handled in the US (such as extensions of stay, amendments and changes of employer or visa category). It likely will also exclude permanent residents.
We’re also in a highly unusual period where most immigration has halted because of the government’s inability to provide those services safely in person. The President halted entries from Canada and Mexico citing 19 U.S.C. 1318(b)(1)(C) and (b)(2) which states
(1)Notwithstanding any other provision of law, the Secretary of the Treasury, when necessary to respond to a national emergency declared under the National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific threat to human life or national interests, is authorized to take the following actions on a temporary basis:
(C)Take any other action that may be necessary to respond directly to the national emergency or specific threat.
(2)Notwithstanding any other provision of law, the Commissioner of U.S. Customs and Border Protection, when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.
This would depend on the President continuing a national emergency declaration which he will be under pressure to rescind given his interest in opening the economy as quickly as possible.
As for what we’re advising clients, it is to not panic and wait to see what the order actually says. We also advise not traveling outside the US until it is clear who is covered by the order (not that it’s so easy to travel). For those abroad, I would travel back as quickly as possible since we don’t know exactly when the order will come and when it will take effect. Beyond that, we don’t have much in the way of specific advice because we do not know the language (which is still presumably being written). But you should let your member of Congress and US Senators know what you think. — Greg Siskind