Last Day of 2020 Immigration Decision, Proclamation

January 1, 2021

The courts and the White House were busy on the last day of 2020 on immigration.

In an opinion by Judge Daniel Collins, joined by Jay S. Bybee, the U.S. Court of Appeals for the Ninth Circuit held in Doe#1 v. Trump as follows:

“On October 4, 2019, the President of the United States issued Proclamation No. 9945, entitled `Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order [t]o Protect the Availability of Healthcare Benefits for Americans.’ The Proclamation restricts entry of immigrant visa applicants who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses. . . . In November 2019, the district court granted a universal preliminary injunction blocking the implementation of this Proclamation. . . . We conclude that the Proclamation was within the President’s statutory authority and therefore reverse the district court’s order enjoining the Proclamation’s implementation.” (citations omitted) (bold and link added).

Judge Wallace Tashima dissented:

“I agree with the district court . . . and with the motions panel of this court . . . that Plaintiffs are likely to succeed on the merits of their ultra vires cause of action because [the] Presidential Proclamation . . . purports to override immigration policies adopted by Congress. The Proclamation overrides both the Affordable Care Act (“ACA”), which makes recently arrived lawful immigrants eligible for subsidized health insurance plans, 26 U.S.C. § 36B(c)(1)(B), and the public charge rule of the Immigration and Nationality Act (“INA”), which comprehensively addresses the circumstances under which individuals may be excluded from this country due to their limited financial means or the financial burdens they will place on others, . . . Although § 212(f) of the INA, 8 U.S.C. § 1182(f) (`§ 212(f)’), `grants the President broad discretion to suspend the entry of aliens into the United States,’ Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018), it does not authorize a President to override congressional policy judgments. The Proclamation therefore exceeds the President’s authority under § 212(f).

Even if that were not the case, I would have grave doubts for other reasons about whether the Proclamation falls within the authority delegated to the President under § 212(f). In contrast to the order upheld by the Supreme Court in Trump v.
Hawaii, Proclamation 9945 has no nexus to national security, addresses a purely domestic concern (uncompensated health care costs), lacks any conceivable temporal limit, and works a major overhaul of this nation’s immigration laws without the input of Congress—a sweeping and unprecedented exercise of unilateral Executive power.”

Photo courtesy of the White House website

President Trump also issued an immigration proclamation on New Year’s Eve. He released an extension of the proclamation “Suspension of Entry of Immigrants and Nonimmigrants who Continue to Present a a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak:

The White House

Office of the Press Secretary

FOR IMMEDIATE RELEASE
December 31, 2020

SUSPENSION OF ENTRY OF IMMIGRANTS AND NONIMMIGRANTS WHO CONTINUE TO PRESENT A RISK TO THE UNITED STATES LABOR MARKET DURING THE ECONOMIC RECOVERY FOLLOWING THE 2019 NOVEL CORONAVIRUS OUTBREAK

– – – – – – –

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

In Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), I suspended, for a period of 60 days, the entry of aliens as immigrants, subject to certain exceptions. In Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), I determined that the considerations present in Proclamation 10014 remained, and I extended the suspension of entry imposed in Proclamation 10014 through December 31, 2020. I further noted that the Secretary of Labor and the Secretary of Homeland Security had reviewed nonimmigrant programs and found that the admission of workers within several nonimmigrant visa categories also posed a risk of displacing and disadvantaging United States workers during the economic recovery following the COVID-19 outbreak. Consequently, I suspended, through December 31, 2020, the entry of any alien seeking entry pursuant to certain nonimmigrants visas, subject to certain exceptions.

The 2019 Novel Coronavirus (COVID-19) continues to significantly disrupt Americans’ livelihoods. While the November overall unemployment rate in the United States of 6.7 percent reflects a marked decline from its April high, there were still 9,834,000 fewer seasonally adjusted nonfarm jobs in November than in February of 2020.

The effects of COVID-19 on the United States labor market and on the health of American communities is a matter of ongoing national concern, and the considerations present in Proclamations 10014 and 10052 have not been eliminated. The current number of new daily cases worldwide reported by the World Health Organization, for example, is higher than the comparable number present during June, and while therapeutics and vaccines are recently available for an increasing number of Americans, their effect on the labor market and community health has not yet been fully realized. Moreover, actions such as States’ continued imposition of restrictions on businesses still affect the number of workers that can be hired as compared with February of 2020.

Given these factors, an extension of Proclamations 10014 and 10052 is appropriate as the President continues to monitor the effects of the COVID-19 pandemic and assess whether a further continuation, modification, or termination of Proclamations 10014 and 10052 is warranted.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(f) and 1185(a)) and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of Proclamation 10014, except as provided in section 2 of Proclamation 10014, and persons described in section 2 of Proclamation 10052, except as provided for in section 3 of Proclamation 10052 (as amended by Proclamation 10054 of June 29, 2020 (Amendment to Proclamation 10052)), would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:

Section 1. Continuation of Proclamation 10014. Section 4 of Proclamation 10014 is amended to read as follows:

“Sec. 4. Termination. This proclamation shall expire on March 31, 2021, and may be continued as necessary. Within 15 days of December 31, 2020, and every 30 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Sec. 2. Continuation of Proclamation 10052. Section 6 of Proclamation 10052 is amended to read as follows:

“Sec. 6. Termination. This proclamation shall expire on March 31, 2021, and may be continued as necessary. Within 15 days of December 31, 2020, and every 30 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Sec. 3. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States. Accordingly:

(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec. 4. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
thirty-first day of December, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fifth.

DONALD J. TRUMP

UPDATE (Jan. 5): Peter Margulies for Lawfare looks at the Ninth Circuit’s decision in Doe#1 v. Trump.

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