#CatoCOVID

Before COVID-19 hit, President Trump was abusing immigration powers delegated to him by Congress to such an extent that the rest of the statutory law was quickly becoming obsolete. Once the pandemic hit, a blizzard of executive actions buried the immigration statutes that now exist only on paper. The president has wholly replaced the normally operating immigration system that Congress crafted over the past seven decades. What “law” remains consists of arbitrary executive actions in which immigrants, workers, students, and visitors plead the government for waivers and exceptions under narrow and vague criteria set by the executive branch. President Biden has an opportunity to return us to an immigration system governed by law after COVID-19 passes, but that requires understanding how we got here.

Trump seized upon the virus to expand and erect a series of extra-legislative bans that shattered the core components of immigration law: equal treatment of immigrants from different nations, family reunification, admission of temporary migrant workers, and a humanitarian immigration system for some of those threatened by persecution. He’s imposed arbitrary bans on immigrants and travelers from specific countries and separated thousands of U.S. citizens and legal permanent residents from their family members solely because of where they were born. Furthermore, he has kept temporary workers such doctors, researchers, and others out of the United States based on their birthplace or fear that they will take American jobs. With very few exceptions, the current president has also essentially ended the refugee and asylum programs.

In August 2020, Trump’s actions had reduced legal permanent immigration from abroad by 84 percent compared to the prior year. The broad statutes under which the president justifies his actions have existed for decades, but prior presidents rarely used them and almost never to suspend entire visa categories or ban whole nationalities. Among other vulnerabilities that the pandemic has revealed, it has underscored the need for Congress to take back its authority to create immigration law.

The first core component of U.S. immigration law is the principle of equality among nations. The Immigration Act of 1965 barred discrimination based on national origin in the issuance of permanent immigrant visas. The 1965 act replaced a system that explicitly discriminated against immigrants who were not from Western Europe or the Western Hemisphere with one that provided for an equal number of immigrant visas for each country. In signing the Immigration Act of 1965, President Lyndon Johnson celebrated the end of a system in which “families were kept apart because a husband or a wife or a child had been born in the wrong place” and in which “men of needed skill and talent were denied entrance” for the same reason. “With my signature,” he declared, “this system is abolished.”

The current president has shredded the concept of equality in immigration law. Less than a week into his first term, Trump banned nearly all immigration from seven majority Muslim countries for 90 days based on a weak security justification. After a long court battle that resulted in multiple new versions of the ban, the Supreme Court upheld his authority to ban immigrants from those countries. Since then, Trump renewed the ban indefinitely and expanded it to six additional countries. In the same way, he has banned nearly all Chinese, Iranians, Europeans, and Brazilians in response to COVID-19. Though Trump has characterized these restrictions as temporary, there is no legal barrier to his extending them indefinitely.

Contrary to the intent of the Immigration Act of 1965, Trump’s actions have separated thousands of U.S. citizens and legal permanent residents from their spouses and children solely because they were born in a banned country, and they have kept doctors, researchers, and other skilled workers out of the United States based solely on their birthplace.

The second core component of U.S. immigration law facilitates the immigration of close family members of U.S. citizens and legal permanent residents. Before Trump assumed office, family sponsorship was the basis for 86 percent of all permanent immigrant visas issued abroad. After the COVID-19 pandemic caused a spike in unemployment, the president unilaterally banned most family-preference immigrants for 60 days, even spouses and minor children of legal permanent residents. Unsurprisingly, he has since extended that ban until 2021. Trump justified the move by saying that the “vast majority of immigrant visa categories do not require employers to account for displacement of United States workers.” But in 1965 and in each reform since, Congress rejected a labor market test for family-sponsored immigrants in favor of the principle of family unity, and it has repeatedly rejected a bill banning most family-based immigrants. Having failed to get what he wanted through the legislative process, President Trump is now imposing his own ad hoc ban via executive fiat.

The third core component of immigration law is facilitating the migration of nonimmigrant (i.e., temporary) workers. The four main temporary work visas are the H‑2A for temporary agricultural workers, the H‑2B visa for seasonal nonagricultural work, the H‑1B visa for temporary workers in highly skilled occupations, and the L‑1 visa for transfers of skilled employees by multinational firms. Congress designed the H‑2A, H‑2B, and H‑1B visa programs with protectionist labor rules that regulate wages or prevent the displacement of American workers. On top of those regulations, the H‑2B and H‑1B visas have low numerical caps.

In June 2020, Trump suspended the L‑1, H‑2B, H‑1B, and other visas until 2021, ostensibly to protect the labor market. This ban will have massive long-term implications. Temporary migration supplies nearly all of America’s legal unskilled foreign workers—providing the only alternative to illegal immigration—and it is the initial pipeline to lawful permanent residence for 83 percent of all skilled workers because employers sponsor temporary workers for green cards after they initially bring them on temporary visas. By interrupting the pipeline of skilled L‑1 and H‑1B workers who can eventually earn green cards, Trump has imposed lasting damage to the most economically important green card categories.

The fourth core component of the U.S. legal immigration system protects refugees, asylum seekers, those fleeing torture, and abandoned or trafficked children who show up at our borders. Individuals with well-founded fears of persecution in their home countries may enter the United States as refugees from abroad. From shortly after World War II until 1980, U.S. government refugee policy was inconsistent and required congressional action during each refugee crisis. To remedy that defect, Congress passed the Refugee Act of 1980, which created a refugee program with annual numbers determined by a combination of congressional funding and presidential decrees. From 1980 to 2016, the United States averaged refugee admissions of more than 80,000 per year.

The current president has gutted America’s humanitarian immigration system. Within a week of becoming president, Trump suspended the refugee program entirely and later restarted it at a much lower numerical cap. In 2019, he signed an order imposing an annual refugee cap of 18,000. While that order provided slots for those with religious-persecution claims, those facing persecution due to their race, nationality, social group, or politics are ineligible. Trump again suspended the program in response to COVID-19, and 2020 has seen just 10,000 refugees resettled.

The U.S. Senate has ratified treaties that prevent the government from forcing refugees back to persecution once they reach America. In 1980, Congress passed legislation explicitly allowing any refugee in the United States or at the border “irrespective of such alien’s status” to apply for asylum. Previous administrations have tried to restrict humanitarian immigration, but the current administration’s 2019 ban on asylum for anyone who transited through another country effectively closed it entirely. This asylum ban returns asylum seekers to the original country from which they fled even if they had a provable asylum claim. In March 2020, the Centers for Disease Control and Prevention issued an order prohibiting asylum seekers and others who transited through Mexico or Canada. The order included people who had already crossed into the United States seeking asylum as well as abandoned or trafficked children who the law protects.

Trump has primarily relied on section 212(f) of the Immigration and Nationality Act of 1952 to rewrite immigration laws. That section provides that a president may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” that he deems “detrimental” to the national interest. The 12 presidents prior to Trump had almost never used this power to ban entire categories or nationalities, almost always barring specific human rights violators. But the current president has stretched the meaning of “detrimental” to its subjective extreme, targeting everyone from executives in multinational firms to minor children of legal permanent residents.

The ban on immigration from majority Muslim countries provided the first test of this authority. In 2017, the Fourth Circuit Court of Appeals concluded that a president could not override the 1965 law that limits national origin discrimination in the issuance of immigrant visas. In a challenge to the same order, the Ninth Circuit Court of Appeals concluded that section 212(f) could not possibly mean that the president can rewrite immigration laws to ban literally anyone he chooses because Congress cannot delegate unfettered authority to the president to make laws. “Immigration, even for the President,” it said, “is not a one-person show.”

But the next year in Hawaii v. Trump, the Supreme Court reversed these decisions, finding that the president’s “detrimental” determination can indirectly require discrimination in visa issuances and, contra the Ninth Circuit, that the ban “falls well within [section 212(f)’s] comprehensive delegation” of authority to the president. Essentially, the Supreme Court ruled that setting immigration policy can be a one-person show.

The only remaining limitation on the section 212(f) authority is that it applies only to those seeking “entry” as “immigrants or nonimmigrants,” not to refugees, asylum seekers, or foreigners inside the United States. But another section of the law allows the president to establish any bar, limitation, or requirements on the admission of refugees when he decides such action “is justified by humanitarian concerns or is otherwise in the national interest.” As with section 212(f), that near-limitless grant of power to the president provides no constraints on executive action.

Restricting asylum required the use of other authorities because asylum law applies only to people already inside the United States. The current administration has used another section of the asylum law that allows the president to “establish additional limitations and conditions, consistent with this section.” “Consistent” could have been an important constraint on this authority. For example, a July 2019 ruling by a federal district court judge enjoined the government’s policy of denying asylum to anyone who transited through another country because it was clearly inconsistent with the laws protecting anyone in the country from returning to face persecution. The government appealed, but before the appeals court even issued its decision, the Supreme Court accepted the government’s request to intervene to allow the policy to take effect just two months later, usually an indication of how it will ultimately rule.

Finally, in March 2020 the president used his authority under the Public Health Service Act to authorize the Border Patrol to deport anyone who came into the United States at the border without authorization, even if they came to request asylum. This exercise of authority appears inconsistent with the law, as alleged in a lawsuit challenging it. The case will ultimately come down to how much discretion the administration has to use the power of deportation to enforce a prohibition on immigrant entry. Meanwhile, the government has expelled hundreds of thousands of immigrants without due process, and given recent rulings, it seems unlikely that the Supreme Court will intervene to reduce the power of the president here.

To restore Congress’s authority over immigration law, Congress should end nationality- or religious-based discrimination in the granting of entry and issuance of visas. Sen. Chris Coons (D‑DE) and Rep. Judy Chu (D‑CA) introduced a bill that would do that. To give teeth to the prohibition, the National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act would also restrict the president’s authority under section 212(f) by requiring him to present evidence of a “security or public safety threat.” The NO BAN Act would also set the judicial standard for review of the president’s actions to assure that any order is “narrowly tailored” to a “compelling governmental interest”—the strictest level of court review regarding government discrimination.

Those reforms are only part of the solution. In addition, the law should require that the threat be unusual or extraordinary, not simply the normal issues that can arise with any applicant. Congress should also impose a strict time limit on all general bans—those not relating to specifically named or described persons—that fail to receive congressional support. A president who presents credible evidence to Congress in a genuine national emergency, such as “the brink of war” or an epidemic, should be able to convince Congress to support the restriction. Two weeks should suffice for Congress to evaluate the evidence in support of a genuine national emergency and pass legislation confirming the president’s ban.

Moreover, Congress should impose a floor below which the president cannot reduce refugee admissions. The Guaranteed Refugee Admission Ceiling Enhancement Act, for example, would guarantee a presidential determination of at least 95,000 refugees annually. Because the administration usually also selects refugees (and may choose—as the president has—very restrictive criteria), Congress should also allow private nonprofits and individuals to sponsor refugees and require the administration to process them.

Congress has consistently included vague, discretionary language that allows presidents to invent new immigration requirements, especially for asylum. In addition to eliminating discretion in asylum, Congress should initiate a comprehensive review of immigration law to eliminate as much discretion in the admission of immigrants as possible (e.g., convert phrases like “may grant” or “may issue” to “shall grant” and “shall issue”). Immigrants and visitors who are eligible for a visa or status should not be denied.

Importantly, foreign workers and relatives of Americans who are abroad need a mechanism to enforce their rights. In Kerry v. Din (2015), the Supreme Court ruled that the only due process to which visa applicants are entitled at most is an agency statement citing the law under which they are being denied. Congress should create a visa appeals board similar to those that exist for immigrants and sponsors residing in the United States, as proposed by Rep. Sheila Jackson Lee (D‑CA). The visa appeals board determinations should be judicially reviewable. In recognition of the fact that Americans have a fundamental right to live in America with their nuclear families, Congress should expressly require heightened scrutiny for denials or unreasonable delays of spouses and minor children of U.S. citizens and legal permanent residents.

The new immigration system has eliminated the core principles of immigration law and replaced them with the current president’s own preferences. The result is a system characterized by secrecy, as no one knows how the policy was created; uncertainty, as no one knows what the policy will be tomorrow; imprecision, as no one knows even what the law is right now; caprice, as presidential proclamations require multiple tries, amendments, and clarifications; and restrictiveness, as the narrowest interpretation is the most common. The resulting system is a far cry from what Congress designed. It’s time for Congress to rectify it.