A federal judge in California has struck down President Donald Trump’s executive order barring many types of visa entrants into the US. As a reminder, Trump issued this order in June because of the supposed threat foreign workers pose to native-born employment during the Covid-19 pandemic.
The decision flatly contradicts a different ruling last month by a different federal district court judge in Washington, D.C. Both cases will now go to the respective courts of appeals. If those courts also disagree, and if Trump is re-elected and doesn’t retract the executive order, the issue could eventually make its way to the Supreme Court.
Which judge is right? The answer depends on how you read the 2018 Trump v. Hawaii case in which the Supreme Court upheld the 3.0 version of Trump’s Muslim travel ban. The California federal court read the travel ban case narrowly and struck down the Covid-era order as beyond the president’s power and as insufficiently reasoned. The D.C. federal court read the travel ban case broadly and upheld the Covid-era order on the theory that federal law basically lets the president do whatever he wants with regard to immigration.
My best guess is that if the case eventually gets to the Supreme Court, the justices would adopt the narrower reading of Trump v. Hawaii. The Covid immigration ban would thus ultimately be blocked.
The alternative would be to give the president nearly carte blanche over immigration matters. That result would not sit well either with the court’s liberals or with all of its conservatives. Justice Neil Gorsuch, for example, doesn’t think Congress can just delegate all its power to the president. The swing vote would probably lie with Chief Justice John Roberts, who wrote the Trump v. Hawaii decision and would probably want to limit it. That ruling has worn poorly, especially when viewed against the backdrop of Trump’s systematic disdain for the rule of law.
The executive order in this case, presidential proclamation 10052, reflects White House adviser Stephen Miller’s extreme anti-immigration stance. It immediately suspended all H1-B, H2-B, J and L visas, which covered occupations from high-skilled tech employees to au pairs.
The statutory basis for the president to claim this unilateral authority was Section 1182(f) of the Immigration and Naturalization Act — the exact same provision at issue in the Muslim travel ban case. It says that the president may suspend visas “whenever the president finds that the entry of any aliens or class of aliens in the United States would be detrimental to the interests of the United States.”
That “whenever” is pretty broad language. Roberts, writing in the Trump v. Hawaii case, said it “exudes deference” to the president. That’s the reason the federal judge in Washington, D.C., thought the Covid-era order was within the president’s authority as conferred by Congress.
The federal judge in California argued that courts should show the president less deference when the issue isn’t national security, as it supposedly was in the Muslim travel ban case, but domestic policy. He went on to say that, if the statute let the president unilaterally change immigration policy based on purely domestic considerations, that would give him “monarchical power” over immigration.
The idea that the president is not a king is perhaps the most significant constitutional leitmotif of judicial decisions in the Trump presidency — not to mention being a crucial element of the impeachment case against Trump. In this context, it means that the courts should not assume that Congress meant to hand over the entirety of immigration policy to the president.
The technical legal issue here, which would matter to the Supreme Court and to Gorsuch in particular — is the so-called “delegation doctrine” (also somewhat confusingly called the “nondelegation doctrine”). It says that if Congress is delegating power to the president, it has to do so using an “intelligible principle.” Arguably, there would be no intelligible principle at play if Congress had written a provision saying that the president could reverse Congress’s judgment whenever he chose.
The Covid-era order didn’t cite any studies or evidence to back up the president’s claims about the economic effect of immigration in a pandemic. The California federal judge said this was unlike the travel ban case, in which the executive branch had made extensive factual findings. This provided him with another reason to block the ban. In contrast, the federal judge in D.C. thought that it was enough for the president to express his “findings” in the order as conclusions, without references or sources.
The truth is that Trump v. Hawaii is a pretty ambiguous document. On the one hand, it defers to presidential authority to impose a travel ban. On the other, it insists on the dubious claim that the president had made factual findings. But then again, it avoids saying that the court has to take the president’s word no matter what.
Since the Trump v. Hawaii decision, Roberts has become much more skeptical about deferring to the president’s authority. He has regularly demanded a higher degree of explanation, as in the census citizenship question case and the DACA rescission case.
If this issue makes it to the Supreme Court, Roberts could have the chance to further narrow the very unfortunate Trump v. Hawaii precedent. But it’s possible that Trump will lose next month’s election, or that he’d choose to rescind this order after his re-election. In that case, the narrowing of the Muslim travel ban precedent will have to wait for another day, and another issue.
Bloomberg
