According to Stuart Anderson, Executive Director of the nonpartisan public policy organization the National Foundation for American Policy, no president has been sued over his immigration policies as much as President Trump. In a recent article in Forbes, Mr. Anderson provides an analysis of the key immigration cases and issues facing the courts. Pending court decisions once decided will affect millions of people, and determine the power of this and future presidents to restrict entry into the United States. The following is adapted from his article:
Barring New Immigrants Without Health Insurance: In an October 2019 presidential proclamation, the President used Section 212(f) of the Immigration and Nationality Act (INA) to bar new immigrants from entering the United States without health insurance, potentially reducing legal immigration by hundreds of thousands of people per year. While the Supreme Court permitted the Administration to use §212(f) authority in the travel ban cases, it is not clear that the Court will defer to the President in this instance because the proclamation does not have a clear connection between the harm alleged to be “detrimental” to the U.S. (uninsured patients in America’s healthcare system) and the means used. Moreover, the proclamation directly contradicts certain provisions of the INA and the Affordable Care Act. In October, the American Immigration Lawyers Association and other organizations filed a lawsuit seeking to block the proclamation; in November, a federal judge in Oregon issued a temporary restraining order to halt its implementation until the judge can rule on the merits.
Using the Public Charge Regulation to Limit Legal Immigration: In August 2019, DHS published a final rule on Inadmissibility on Public Charge Grounds. A nationwide injunction against the public charge rule was entered in October 2019.
DACA: On September 5, 2017, then-Attorney General Jeff Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program. On November 12, 2019, the Supreme Court heard oral argument on the three consolidated cases challenging the termination of the program as violative of the Administrative Procedure Act, which is the federal law governing administrative agencies, as well as the rights of DACA recipients. A decision is expected in June 2020.
Temporary Protected Status (TPS): In October 2018, a federal court blocked the Administration’s attempt to rescind TPS for Sudan, Nicaragua, Haiti, and El Salvador, affecting approximately 300,000 people. DHS may not effectuate the termination of TPS for these countries while the order remains in effect.
Asylum and Detention Policy: In September 2019, the Supreme Court, in a brief, unsigned order, ruled that the Administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country. At the same time, the American Civil Liberties Union has filed several lawsuits against the Administration’s asylum and border policies. The lawsuits include claims seeking damages on behalf of thousands of traumatized children and parents separated at the border; challenging expanding “fast-track” deportations without a fair legal process (lack of a court hearing or access to an attorney); challenging a new policy that categorically denies bond hearings to asylum seekers, and a lawsuit asking for access to legal representation for detained migrants who have expressed a fear of being returned to Mexico.
Unlawful Presence for International Students: Two USCIS policy memos from 2018, if implemented, would result in many international students who unknowingly violate their immigration status being barred from the United States for 10 years. In May 2019 a federal district court issued an injunction blocking implementation of the memos.
Travel Ban Waivers Process: Two cases challenge the waiver process the Trump Administration uses for those targeted by the travel ban as inconsistent and arbitrary The result has been that few visa applicants have actually been granted a waiver.
Diversion of Military Money for Border Wall: A federal judge issued a nationwide injunction blocking the Administration’s plans to use $3.6 billion in military construction money to build the border wall.
Other lawsuits filed by individuals, corporations, and organizations abound, including suits challenging DHS’s interpretation of “specialty occupation” for H-1B visas and DOS’s rules requiring people who apply for U.S. visas from abroad to register their social media identifiers with the government.
Traditionally, Congress takes the lead on U.S. immigration law and policy. The Trump Administration’s attempt to use regulations, executive orders, and presidential proclamations to overcome opposition to its policies in Congress means federal judges will decide if the Administration has gone beyond the law.