On May 18 2016 by William A. Stock

Immigration Policy: How Much Can President Do Without Congress’ Approval?

Donald Trump has made a promise to enact immigration restrictions a central part of his appeal for the Republican presidential nomination, from increasing physical barriers on the border to his call for a temporary ban on Muslim immigration. On the Democratic side, both Hillary Clinton and Bernie Sanders have made promises that they will provide temporary protection from removal for an even larger category of immigrants without status than President Obama's currently enjoined Deferred Action for Parents of Americans or "DAPA" program would.

Regardless of which candidate takes the White House, however, Congress will likely remain divided over the immigration question, so the next president will have to act under the current statute. Title 8 of the U.S. Code, the statutory source of our ­immigration laws and regulations, contains a number of provisions that a new president of either party could use to enact his or her policy preferences without needing changes from Congress. Obama has been limited in his ability to use administrative tools to provide for a more generous immigration system, and Clinton or Sanders would have the same limitations. For Trump’s stated restrictive immigration goals, ­however, the current statute gives a president an ­important tool to enact immigration restrictions.

If Trump is elected, he has made a number of immigration policy proposals that would require congressional action. His ­proposals to tripling the number of interior enforcement officers in the U.S. Immigration and Customs Enforcement (ICE) agency; ­mandating use of the E-Verify system by all employers; cutting off federal funds for cities that do not agree to have their police officers work with ICE; and creating new criminal penalties for overstaying visas will all require congressional appropriations or new statutory language. Likewise, his call for reforms of certain employment-based visa categories, such as increased wages and a stricter labor market test for the H-1B visa program, would need to be embodied in new statutory language before they could be implemented.

A significant number of Trump’s policy proposals, however, revolve around ­cancellation of visas on various grounds. To pay for a higher and longer physical barrier on the U.S.-Mexico border, for example, he promises to use the threat of canceling visas for Mexican nationals, and increasing visa fees, to extort $5 billion to 10 billion in payments from Mexico. He has also called for threatening to cancel visas of people from other countries if their country does not ­accept deportees from the United States, and for canceling the J-1 exchange visitor program under which foreign students can perform work and travel during school breaks. Most controversially, he has called for canceling the visas of some or all noncitizens who are Muslims.

Could a President Trump unilaterally cancel the visas in all or some of the categories he proposes? The Immigration and Nationality Act of 1952, Pub.L. 82-414, enacted a provision still found in Title 8 of the U.S. Code at Section 1182(f). The provision gives the president authority to “suspend the entry” of any class of foreign ­nationals when the president deems their entry to be “detrimental to the interests of the United States.” No other standard is set forth in the law for the exercise of this power, and it has been exercised in the past by presidential proclamations suspending entry of certain classes of foreign nationals. Obama, for example, issued a presidential proclamation in 2011 suspending entry of any foreign national who “planned, ordered, assisted, aided and abetted, committed or otherwise participated in” specified human rights violations or war crimes. The proclamation then delegated to the secretary of State the sole discretion for identifying and barring individuals under the proclamation.

Presidential proclamations, by their nature, are solely within the prerogative of the president and do not have any pre-publication notice requirement, as (for example) regulations do. Therefore, the only way to challenge a presidential proclamation suspending entry of all or some foreign nationals based on their nationality, in the case of Mexicans, or their religious faith, in the case of Muslims, would be a post-promulgation legal challenge. Such a legal challenge would pit two well-established legal doctrines against each other. On the one hand, Congress has been deemed in many cases to have “plenary power” to make immigration rules and to delegate unrestricted discretionary enforcement power to the executive. Courts have held that statutes or exercises of discretion that would otherwise violate the equal protection guarantee under the Constitution are allowed in the ­immigration sphere.

On the other hand, the strong protection of religious belief from government interference found in the First Amendment’s free exercise and establishment clauses might cause the courts to place at least some limits on this otherwise-unlimited power; that would go against the grain of the U.S. Supreme Court’s immigration jurisprudence, however. Some guidance as to just how free a president’s hand would be can be found in its recent decision in Kerry v. Din, ___ U.S. ___, 135 S. Ct. 2128 (2015). In Din, the judgment of the court was that the Department of State’s mere assertion that it was acting under its authority to bar admission of terrorists was sufficient to insulate its denial of a visa from review. In that case, the State Department had denied an immigrant visa to the spouse of a U.S. citizen, asserting without any detail that the denial was under terrorism and security grounds. The court held there was no right to any further notice or opportunity to be heard than that bare assertion of the reason for the denial.

Nothing in the present language of Section 212(f) would prevent a president from asserting that it was “detrimental” to grant admission as a visitor to, for example, any Mexican national with an executive position in a company that operates a maquiladora plant. Similarly, a president could assert that the summer work-travel program established by State Department regulations was “detrimental” to United States interests, and bar participants from the United States. The statute provides no ­standard by which the president’s determination that any particular admission would be ­”detrimental” to United States interests can be measured; as a matter of administrative law, then, the courts would be unlikely to second-guess a ­presidential proclamation enacting such a ban.

One reason Trump’s immigration proposals rely heavily on refusal of visas by presidential proclamation is that there are few other tools he would have that are not subject to congressional or bureaucratic resistance. Even Trump’s proposal to raise visa fees unilaterally on Mexican visa ­issuance would run into statutory limitations, as Section 1351 of the Immigration and Nationality Act directs the Department of State to set visa fees by reciprocity with each country, meaning that the cost of a United States visa should not exceed the cost that a United States citizen would pay for a similar visa to that country. Absent Mexico raising its fees on U.S. citizens, raising visa fees to “pay for the wall” would take an act of Congress. Even where changes might be accomplished by regulation, Trump would have to deal with the notice and comment requirements of the Administrative Procedure Act. Within the realm of refusing admission, however, the courts would be likely to give him free reign, even if his refusals of visas were more detrimental to the United States than facilitating trade and travel would be.

Reprinted with permission from the May 18, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.

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