Federal Court Rules Against Trump’s Work Visa Ban
In an important decision issued last week, US District Judge Jeffrey White of the Northern District of California (a Republican George W. Bush appointee) ruled that President Trump’s recent proclamation suspending nearly all entry of foreign workers on employment visas is illegal. The case was brought by a coalition of employer groups, including the US Chamber of Commerce, the National Association of Manufacturers, and others. I wrote about the issues at stake here:
Section 212(f) [of the Immigration and Nationality Act], codified as 8 USC Section 1182(f)… gives the president the power to bar entry into the US by any foreign national whom he deems to “detrimental to the interests of the United States.” In Trump v. Hawaii, Chief Justice John Roberts’ majority opinion interpreted this as giving the president the power to exclude almost any alien he wants, so long as he makes a finding that the person’s presence is “detrimental to the interests” of the US. Under Roberts’ logic, the president need not prove that supposed threat to US “interests” is real, and there is no limitation on what qualifies as a relevant “interest….”
The business groups argue there are some limitations on Section 212(f) even in the wake of Trump v. Hawaii. But if the plaintiffs do not prevail under the [Administrative Procedure Act], and cannot persuade the courts to adopt a more limited interpretation of Section 212(f), the case could come down to the nondelegation issue. That question was not addressed in Trump v. Hawaii, and thus could be used to limit the president’s power without in any way overruling or limiting the scope of that decision…
Trump v. Hawaii did not consider the possibility that this view of Section 1182 violates the “nondelegation” doctrine: the principle that Congress cannot delegate sweeping lawmaking power to the executive. In last year’s ruling in Gundy v. United States, both liberal and conservative justices indicated the real limits on that delegation of power. In a dissenting opinion joined by two other conservatives, Justice Neil Gorsuch emphasized that the Constitution does not allow the president to exercise “the power to adopt generally applicable rules of conduct governing future actions by private persons.” Only Congress may do that. Justice Elena Kagan’s plurality opinion for the Court held that Congress may not give the president “‘unguided’ and ‘unchecked’ authority” to determine the scope of a law, especially when violations carry criminal penalties. Trump’s use of Section 1182 to impose a sweeping ban on immigration pretty obviously makes “generally applicable rules of conduct” for private parties—many millions of them…. Just as clearly, the idea that the president can exclude any potential immigrant for any reason, subject to the imposition of criminal penalties for violators, is a case of”‘unguided’ and ‘unchecked’ authority,” if anything is.
Sure enough, Ju
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