No, Mr. President, Your Immigration Powers Are Not Unlimited

No, Mr. President, Your Immigration Powers Are Not Unlimited

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Originally published by The New York Times

A president has broad powers over immigration under the Constitution and federal laws, but they are not unlimited. At the very least, there must be a reasonable basis for restrictions on immigration. None exists for President Trump’s threat to temporarily ban all immigrant visa admissions to the United States.

As with earlier, problematic immigration policies like the entry ban aimed at several predominantly Muslim countries, this proposal started out with a remarkably broad promise by the president: a ban on all immigration. That sweeping rhetoric has a cost of its own. Among other things, it may discourage international students from enrolling in American universities this fall, and otherwise signal “keep out” to visitors who would actually boost the economy. But beyond the rhetorical overkill, there are other problems with this ban. The actual policy proposal is much less than promised by tweet, but even in its whittled down form, it is still unlawful.

A ban on the entry of individuals who have been granted immigrant visas would not affect as many people as you might think. Although there are usually more than 180 million entries into the United States every year, most of that traffic is by people holding temporary visas. This policy would affect only those immigrants who have been authorized for permanent residency. That involves less than a million people — a number that has declined in recent years because of other entry bans, new requirements on immigrants and slow visa processing. The answer to the crushing domestic unemployment crisis caused by the coronavirus outbreak is clearly not going to be found in a ban on these immigrants.

On the other hand, the ban would cause enormous hardships for those who have been granted immigrant visas. Denial of green cards could keep parents and children and other family members from being together. Critical industries — including the overwhelmed medical industry — will lose out on vitally needed expertise just when it is needed most.

One would think that such a draconian measure would have a strong justification. If nothing else, under the law, there has to be a legitimate basis for such an order. In upholding President Trump’s travel ban in Trump v. Hawaii, the Supreme Court stressed that it was based on a “D.H.S. and other agencies … conduct[ing] a comprehensive evaluation” and “extensive findings.” The court found it constitutional because it served the legitimate purpose of national security.

In other words, even the court’s very deferential approach to presidential decisions concerning immigration in Trump v. Hawaii demanded that the actions be reasonable. The proposed ban on immigration cannot meet that test.

It cannot be justified on public health grounds; indeed, the president’s tweet did not even mention public health as a basis for the ban. This makes sense, because no one has suggested that protecting public health necessitates an end to immigration. Even during the height of the 1918 flu pandemic, the United States safely allowed more than 110,000 immigrants to enter the country. Public health requires no more than a temporary quarantine on arriving immigrants who might be infected — something that the Trump administration has already done for certain arriving immigrants.

Based on his tweet and the subsequent announcements, though, it seems that economic, not health, concerns are driving the president. His stated reason for ending immigration is to keep immigrants from taking “the jobs of our GREAT American Citizens.” But that does not justify keeping a child from getting a green card to be with a parent. Nor is it a reason to keep out trained health care workers or other highly specialized workers who might lend a helping hand in the unfolding crisis. The majority of employment-based immigrant visas are designed specifically for highly educated workers with unique, specialized skills. Keeping them out will not create jobs for displaced workers.

In fact, immigrants have a long track record of creating jobs for American workers through innovative business creation. Banning immigration is so overbroad as to be clearly unreasonable, and it is far more likely to kill jobs than to create them.

In Hawaii v. Trump, President Trump convinced the Supreme Court that his entry restrictions were lawful because Congress granted the president broad power in the immigration law to exclude immigrants “detrimental to the United States.” But the portion of the law he relied upon in that case should not apply to this situation. It has been used only in cases where restrictions are tied to the actions of foreign governments. That is not this case here, and the provision likely does not apply to this general ban. To read it this broadly would be to eviscerate many other aspects of Congress’s regulation of immigration.

A week ago, President Trump declared, “When somebody is the president of the United States, the authority is total.” That is simply not true in a country that is committed to constitutional checks and balances and the separation of powers. Even in an area like immigration, we must reject the idea that the chief executive can do whatever he wants for any reason. This latest order will not improve the depressed employment market, so it is pointless as a job protection measure. But it will have a devastating effect on the families of banned immigrants. There must be a better reason than that the president thinks it will appeal to his political base and help his re-election effort.

Jennifer M. Chacón is professor of law at the University of California Los Angeles Law School and Erwin Chemerinsky is dean and professor at the University of California Berkeley Law School.

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