In a closely watched case on the limits of presidential authority over immigration, a federal judge issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. District Judge Jeffrey S. White ruled the president does not possess the power of a monarch to cast aside immigration laws passed by Congress.
Judge White’s October 1, 2020, order in NAM v. DHS prevents the State Department and Department of Homeland Security (DHS) from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.” The preliminary injunction remains in effect pending trial, unless overturned on appeal, and applies to the plaintiffs, which include Intrax and the member companies of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation and TechNet.
At the September 11, 2020, hearing in the U.S. District Court for the Northern District of California, Paul Hughes of McDermott Will & Emery, counsel for the plaintiffs, framed the issues before the court as follows: If Congress delegated unlimited authority to the president under Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), the law is unconstitutional as an unlawful delegation of authority by Congress. If the authority is not unlimited, then there are limits to the president’s authority based on rational standards, the Supreme Court’s decision in Trump v. Hawaii and the 9th Circuit decision in Doe #1 v. Trump.
At the time, Greg Siskind of Siskind Susser said in an interview that Hughes had done an excellent job framing the case, including by arguing in court that past presidential proclamations filled gaps in the Immigration and Nationality Act (INA) rather than rewrote immigration law.
“On first reading, three key factors persuaded Judge White to enjoin the proclamation,” said William Stock of Klasko Immigration Law Partners, LLP in an interview. “First, until this proclamation and the immigrant visa ban which preceded it, every 212(f) proclamation was predicated on specific foreign policy concerns.”
“Second, this proclamation was predicated exclusively on domestic labor market concerns, which Congress considered and balanced by allowing some types of employment-based temporary visas, but not others, and imposing explicit labor market tests in some categories, but not others,” said Stock. “Third, Supreme Court precedent recognizes that Congress is virtually unrestricted in the rules it may make for immigration, and the President’s 212(f) authority cannot be read to allow him to negate or rewrite specific sections of the Immigration and Nationality Act, which this proclamation did.”
Judge White’s ruling focused on three areas – Congressional delegation of power, whether the proclamation “eviscerates” parts of the Immigration and Nationality Act and the findings in the presidential proclamation.
Congressional Delegation of Authority in Domestic Affairs: “Under this strict separation of powers, Congress has created a complex, highly reticulated set of immigration laws and regulations,” writes Judge White in his opinion. “Congress has legislated in the immigration arena since 1882.”
He noted that Congress delegated to the president the authority to suspend or restrict aliens under certain specific circumstances under Section 1182(f) [212(f)] of the INA. “However, the Supreme Court also noted that calculus changes where the authority exercised by the President is outside the suspension of entry of aliens based on foreign policy interests,” he writes. “While the discretion to suspend entry of aliens into the United States is broad, ‘the substantive scope of this power is not limitless.’ [Doe #1 v. Trump]. In the Muslim Proclamation, the President ‘acted within the traditional spheres authorized by § 1182(f): in the context of international affairs and national security, and working in tandem with the congressional goals of vetting individuals from countries identified as threats through an agency review.’” [He cited Trump v. Hawaii (or Hawaii III).]
The difference between the June 2020 proclamation and the Muslim Proclamation the Supreme Court decided in Hawaii III is “the Proclamation here deals with a purely domestic economic issue – the loss of employment during a national pandemic. In ‘domestic economic matters, the national security and foreign affairs justification for policy implementations disappear, and the normal policymaking channels remain the default rules of the game.’ This Court rejects the position that the Proclamation implicates the President’s foreign affairs powers simply because it affects immigration.’”
Judge White cited an amicus curiae brief from law professors that all past presidents “had issued such Proclamations with the basic understanding that ‘exercises of authority under § 1182(f) must connect to the United States’ relations with foreign powers.’ As the Court examines this Proclamation in the immigration context aimed to address purely domestic considerations, the amicus suggest that ‘[g]iven this lack of pedigree on past practice, this Court should scale back deference that it affords the current proclamation.’”
The district court in Doe #1, also in the 9th Circuit, blocked the president’s proclamation banning the entry of immigrants who lacked health insurance in part because it was the first proclamation “based solely on a change in domestic policy by invoking the delegation of powers in immigration to the President.”
In Doe #1, the district court held that the ban on immigrants who lacked health insurance used section 212(f) “‘to engage in domestic policymaking, without addressing any foreign relations or national security issue or emergency,’” noted Judge White. “‘In this wholly domestic context, the delegation by Congress is without any intelligible principle and thus fails under the nondelegation doctrine.’ This Court agrees. Congress’ delegation of authority in the immigration context under Section 1182(f) does not afford the President unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners.”
The Proclamation Eviscerates Portions of the INA: “In addition to finding that executive power is reviewable and somewhat curtailed in the context of a purely domestic economic issue, the Court also finds that Congress did not delegate authority to eviscerate portions of the statute in which the Congressional delegation of power was made. Logic would so dictate,” writes Judge White.
“The Proclamation at issue here nullifies significant portions of the remainder of the INA [Immigration and Nationality Act], by declaring invalid statutorily-established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond that deadline,” according to the judge. “Here, rather than supplementing the INA’s existing provisions, the Proclamation eviscerates whole categories of legislatively-created visa categories. Until, at a minimum, the end of the year, the Proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories. The Proclamation, by its explicit terms, rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers.”
In a footnote, Judge White expressed skepticism that the ban on the entry of visa holders banned under the proclamation would ever end: “The indeterminate end date of the Proclamation is also legally suspect. Although by its terms, the effective termination date of the Proclamation is December 31, 2020, it provides that the end date may be extended indefinitely at the discretion of the President and his appointees.”
The Finding is Insufficient as a Matter of Law and Contradicted by the Text of the Proclamation: “In this matter, however, there is no record whatsoever that the President or any federal agencies at his instruction conducted any evaluation regarding the effect on the domestic economy of banning work-related nonimmigrant visas at issue here,” according to Judge White. “Rather, and as Defendants affirmed during the hearing in this matter, the entirety of the President’s finding is located within the text of the Proclamation itself. In the text of the Proclamation, the President states that he determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.”
“Although facially the President’s determination appears to be a finding as required by Section 1182(f), there is nothing proffered in the record that any such reviews were made by the Secretaries of Labor or Homeland Security, and no reports of any sort that a specific determination was made that nonimmigrant visa applicants had any deleterious effect on the United States economy or American citizens’ employment rates,” writes Judge White.
The judge noted a “significant mismatch of facts regarding the unemployment caused by the proliferation of the pandemic and the classes of noncitizens who are barred by the Proclamation.” He writes, “The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that large number of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers.” (Emphasis added.)
The judge referenced Exhibit 31 of plaintiffs’ attorney Paul Hughes’ declaration, which was a June 2020 National Foundation for American Policy (NFAP) analysis that showed between January and May 2020 the U.S. unemployment rate in computer occupations had remained stable and actually declined in occupations that lined up with those of H-1B visa holders (based on DHS H-1B occupational data). That information was available at the time the June 2020 proclamation was issued. The NFAP analysis also found, “During the 30-day period ending June 9, 2020, there were over 639,000 active job vacancy postings advertised online for jobs in common computer occupations, including those most common to H-1B visa holders.”
“The Presidential finding in the text of the Proclamation, such as it is, is not supported by any review or report proffered by Defendants,” concluded Judge White. “Rather, although its stated purpose is to aid the domestic economy by providing job opportunities for United States citizens, the Proclamation completely disregards both economic reality and the preexisting statutory framework.
“Furthermore, without any consideration of the impact on American firms and their business planning, the Proclamation abruptly changed the scope of immigration policy in the United States. . . . This lack of predictability necessary for basic business governance and planning is contrary to the stated purpose of promoting American business in order to provide employment opportunities for United States citizens.
“Accordingly, the Court concludes that Plaintiffs have satisfied their burden to demonstrate that they are likely to prevail on the merits or, in the alternative, have demonstrated serious questions going to the merits of their claim that the issuance of the Proclamation is invalid based on the determination that the finding set out in the text of the Proclamation is insufficient as a matter of law, it does not comport with actual facts, and lastly, it does not address the alleged problem it purports to address.”
The opinion in the case places essential limits on executive authority. “There must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative,” according to Judge White. In short, America does not elect a king every four years – not even a king of immigration.