The Trump administration’s impending action to temporarily bar foreign guestworkers from entering the U.S. likely will be met with litigation arguing that the order violates federal immigration and administrative laws, attorneys told Bloomberg Law.
Senior White House officials on Monday told reporters that President
“There’s certainly going to be litigation, we’re going to be part of it,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.
Section 212(f) of the Immigration and Nationality Act gives the White House authority to suspend immigration programs, and the administration has invoked its use based on the economic downturn that has followed in the wake of the coronavirus pandemic. Trump’s first immigration executive order tied to the Covid-19 outbreak, signed in April, barred foreign nationals on foreign soil seeking U.S. residency from applying for green cards for 60 days. Several lawsuits against that order ensued and remain pending.
Officials said Monday that the new proclamation is meant to spur economic recovery by protecting jobs for U.S. workers. They estimated about 525,000 jobs would be preserved through the end of 2020. But following a small drop in unemployment numbers last month, the White House said the economy was already rebounding.
“It’s the same type of double speak that they throw out to whatever audience they happen to be speaking with,” Bless said. “We now know there was no intention of sunsetting the April proclamation, and if this is allowed to continue, who’s to say this will stop at the end of the year.”
Scope of Authority
Section 212(f) grants the president broad authority to decide which foreign nationals can enter the country, said Mark Koestler, co-chair of Kramer Levin Naftalis & Frankel LLP’s business immigration practice. “I’m not sure litigation will necessarily carry the day on those issues, no one has brought a suit successfully for the current travel bans in place.”
The Supreme Court in June 2018 upheld Trump’s travel ban of foreign nationals from predominantly Muslim countries. During the coronavirus pandemic, the administration also has restricted travel from China, Mexico, Canada, and most of Europe.
But it takes just one district court to “prevent a wide-ranging proclamation like this,” said Matthew Dunn, Koestler’s co-chair at Kramer Levin. “There are suits that are being readied to be filed by industry groups, and I would predict that one of these suits will be taken very seriously by a district court judge and likely lead to a restraining order in some fashion.”
“While the language of the statute gives the president broad power, it doesn’t actually allow him to cut off immigration completely,” Dunn said.
There’s also an open question of law on where the authority of an executive order stops in light of the Administrative Procedure Act, said Jonathan Wasden, an immigration attorney with Wasden Banias LLC. “You can’t change regulation via EO, but there’s never been a court case squarely on point.”
“If they try to do this via executive order, that would give us a clear case” to sue, he said. “It shouldn’t take long to be in court. I don’t think there’s going to be a shortage of litigation on this.”
The APA was most recently the proverbial wrench in the administration’s attempt to terminate the Deferred Action for Childhood Arrivals program. Last week, a split U.S. Supreme Court ruled that the administration didn’t follow the proper rules when it ended the program. But the justices didn’t preclude the administration from trying again.
According to Bless, the extension and expansion of immigration restrictions for immigrant and nonimmigrant individuals is a violation of the administration’s authority.
“The president does not have the authority to rewrite immigration laws that Congress has passed,” he said. “To ban nonimmigrant and immigrant visas, that’s tough to reconcile with Congressional intent” in the Immigration and Nationality Act.