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Law360 (May 1, 2020, 6:42 PM EDT )
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| Jeffrey Gorsky |
Although U.S. District Judge Michael H. Simon of the U.S. District Court for the District of Oregon declined to issue an emergency temporary restraining order on April 29, the plaintiffs in the Doe v. Trump case did not challenge the legality of the proclamation and his decision did not reach whether the proclamation rests on sound legal rationale.
The plaintiffs, including the American Immigration Lawyers Association, sued on behalf of a class of children of green card holders who qualified for immigrant visas but would age out of eligibility during the 60-day ban.
Rather than challenge the legality of the new proclamation, the plaintiffs requested that this class be added to an earlier injunction Judge Simon issued on another Trump ban six months ago. In November, Judge Simon enjoined Trump's Oct. 4, 2019, proclamation that would have suspended entry to certain foreign nationals who lacked medical insurance.
But Judge Simon declined to add the new class of plaintiffs to his earlier injunction, noting that the two proclamations were completely unrelated and therefore their allegations too attenuated.
Despite the ruling, the proclamation remains vulnerable to attack because of its stated justification of protecting the U.S. labor market.
The underlying legal basis for the president's travel ban authority is Section 212(f) of the Immigration and Nationality Act, which allows the president, by proclamation, to bar entry of a foreign national or class of foreign nationals upon a finding that the entry of such person would be detrimental to the interests of the United States. It therefore is not a plenary grant of authority, but requires the president to cite a reason why the person's entry would be detrimental to U.S. interests.
The Trump administration initially used national security concerns to support its travel bans and in the 2018 case of Trump v. Hawaii, the U.S. Supreme Court upheld his authority for a travel ban based on the cited national security concerns. More recently, this year the president has signed four proclamations barring travel from China, Iran, the EU, the Schengen Area, the U.K. and Ireland, based on health concerns due to the coronavirus.
There have been no challenges to the COVID-19 travel bans to date, and had the president used the pandemic as a justification for the latest travel ban, it would probably be legally unassailable.
The new proclamation also uses the president's 212(f) authority. However, unlike the previous four COVID-19-inspired bans, the new proclamation did not rely on the health concerns, and instead cited the economic crisis, stating that immigrants now present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.
The decision to justify the ban by citing a threat to U.S. jobs is politically based; the president had long taken the position, expressed in his Buy American and Hire American executive order of April 18, 2017, that foreign nationals pose a threat to U.S. workers.
Moreover, this new order uses the supposed threat to U.S. jobs to essentially implement the president's previous immigration proposals, which would have shifted from family-based immigration (which he denigrated as "chain migration") to employment ("merit based") immigration. While the ban on its face applies equally to employment-based and family-based immigrants, since most employment based immigrants adjust status in the U.S. rather than visa process (and adjustments are not affected by the ban), the ban principally hits family-based cases.
While this focus on the alleged threat to U.S. jobs is consistent with the president's political agenda, this justification raises legal concerns. This is because a substantial portion of those covered by the ban are not part of the U.S. labor market because they are not seeking — or legally cannot seek — employment, and therefore on a prima facie basis do not threaten the U.S. labor market interests that form the basis for the ban.
For example, the ban covers children of lawful permanent residents (unmarried children under the age of 21), and of course infants and young children are not a present threat to the U.S. labor market. Parents of U.S. citizens may be retired and no longer seeking employment. Other applicants such as spouses may not be involved in the labor market. However, the proclamation does not allow for waivers for individuals who are not going to be engaged in employment — the exception to the ban requires a finding that the entry of the person is in the "national interest."
Therefore a substantial number of people are barred from the U.S. without being eligible for a waiver even though they facially do not pose the threat that forms the basis of the ban. For that reason, the overly broad sweep of the new ban arguably exceeds presidential authority and makes the ban vulnerable to a court-ordered injunction, similar to the injunction Judge Simon imposed on the health insurance travel ban.
Jeffrey Gorsky is senior counsel at Berry Appleman & Leiden LLP
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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