Trump has now added another, which his administration says is aimed at addressing “a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.” The answer to this emergency, according to the president Wednesday, is “my Executive Order prohibiting immigration into our Country today.”
To be accurate, it is not an executive order but a proclamation; and more important (yes, even to me), it doesn’t actually prohibit immigration. Numerous exceptions are built into the 60-day directive, including for people already in the United States, for guest workers, and indeed for “any alien whose admittance would be in the national interest.” This makes the policy change far less sweeping than suggested by the president’s late-Monday-night tweet, which set off a confused bureaucratic rush to finish drafting the proclamation.
Given that U.S. consulates abroad have largely been shuttered, few applications for green cards and the like were being processed, and the administration was already using other laws to shut down other border crossings. Indeed, as the Wall Street Journal notes, “the administration has already all but ceased nearly every form of immigration.” Even so, the proclamation means the continued separation of many families; tens of thousands of potential immigrants will see their American Dream at least deferred.
Trump’s directive is drawn from the discretion Congress gave the president in the Immigration and Nationality Act (INA). Thus it might be dubbed Travel Ban III. The first was issued in the first week of the president’s term, attempting to enact his 2016 campaign promise of a “total and complete shutdown of Muslims entering the United States.” In late January 2020, a follow-up proclamation — which received far less news media attention, coming just after Congress’s impeachment trial of Trump and during the beginning of the pandemic crisis — barred travelers from still more countries, mainly from Africa.
In fact, since the first ban went through three iterations as it wound its way to the Supreme Court, the present effort could be labeled Travel Ban V. It may, however, involve fewer car wrecks than other similar sequels — because, of course, the court held in 2018 that the president’s authority under the INA is all but unimpeded. “By its terms,” Chief Justice John G. Roberts Jr. wrote, that statute “exudes deference to the president in every clause.” The key exuding clause here?
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Another section lets the president “prescribe” unspecified “limitations and exceptions” to entry.
While the president’s Monday tweet said his action would respond to “the attack of the Invisible Enemy,” the proclamation itself barely mentions public health concerns. Still, just as there doesn’t have to be an actual emergency for the president to invoke the National Emergencies Act, what can be considered “interests to the detriment of the United States” seems to contemplate a wide zone of presidential discretion.
And in fact, public health is yet another area where the executive branch has been granted huge swaths of relatively unimpeded authority. The 1944 Public Health Service Act, for instance, allows the Department of Health and Human Services “to make and enforce such regulations as in [the surgeon general’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions.”
Those regulations, in turn, allow the administration to “prohibit the introduction into the United States of persons from designated foreign countries” so long as the Centers for Disease Control and Prevention director determines that “the existence of any communicable disease in a foreign country” is a “serious danger.” That danger could involve the introduction of the disease into the United States or merely new “vectors” of that disease, “even if persons or property in the United States are already infected or contaminated.” The administration is using that authority to override other laws and court decisions defining how the United States is supposed to treat people crossing the southern border. Even migrants seeking asylum on humanitarian grounds have been turned away.
Are these necessary exigencies or ideological excuses? Either way, the situation highlights how massively Congress has delegated power to the executive over time. That transfer of authority allows presidents of both major parties to put former Barack Obama adviser Rahm Emanuel’s famous dictum into practice: “Never allow a good crisis to go to waste.” So far, legislators have shown few signs of reclaiming their prerogatives. Meanwhile, even as Trump insults the administrative state, he is eagerly using its powers.