On Monday, President Donald Trump extended a near-total ban that he had first announced in April on entry into the United States by immigrants seeking “green cards” for permanent residency. This policy is the most sweeping ban on immigration in American history. Even during earlier crises, such as the Great Depression, the two world wars, and the horrific flu pandemic of 1918–19, the U.S. did not categorically ban the entry of virtually all immigrants seeking to settle here permanently. The newly expanded version of the policy also severely restricts temporary work visas.
The official justifications for these policies are the prevention of the spread of the coronavirus pandemic and the protection of American workers from wage competition. Neither rationale can justify such a sweeping restriction on immigration. Even more troubling, the order is a large-scale executive-branch power grab that sets a dangerous precedent. It makes a mockery of conservative jurists’ insistence that there are constitutional limits to the amount of authority Congress can delegate to the executive.
Although the administration’s initial ban was presented as temporary, lasting for only 60 days, many officials, led by Stephen Miller, the administration’s most influential adviser on immigration policy, would like to continue it indefinitely. On June 22, Trump extended the green-card ban until the end of the year, and expanded it to cover H-1B visas as well as other temporary-employment visas. The same reasoning that supposedly justified the initial 60-day ban has now been used to justify a much longer and more wide-ranging one that can easily be extended still further.
Among the victims are American citizens who have already waited years to be reunited with relatives who are now trapped abroad. While the measure exempts spouses and children of U.S. citizens (if the children are under the age of 21), it still bars siblings, parents, and other relatives. The administration has compounded the injustice by blocking almost all asylum applications from refugees trying to cross the border, despite the fact that such a measure violates both American and international law, which forbid the expulsion of refugees facing persecution based on race, religion, political opinions, and other similar categories in their countries of origin. Recently issued regulations also categorically deny asylum to women fleeing gender-based persecution and indefinitely extend a rule mandating the virtually automatic expulsion of unaccompanied minors crossing the border, including many fleeing horrific violence and abuse.
Combatting the coronavirus pandemic does not require a sweeping ban on immigration. Travel restrictions have done little to stop the spread of COVID-19, and the United States already has extensive domestic “community spread.” Many potential immigrants would be coming from nations where the disease is actually less widespread than it currently is in the U.S.
In cases of would-be immigrants from nations where there has been a serious coronavirus outbreak, a less draconian and more effective alternative to blanket exclusion exists: Impose a 14-day quarantine on entrants from potentially dangerous areas. South Korea, which has done a far better job of constraining COVID-19 than the U.S. has, has adopted exactly that policy. Immigrants can be isolated until it is clear they do not have the virus.
A 14-day quarantine may be a deal breaker for tourists. But for immigrants, it is a small price to pay for the chance to live in a society that offers greater freedom and opportunity. And unlike migration restrictions, a regime of free migration with some targeted quarantine measures does not create a large population of undocumented immigrants, who in turn have strong incentives to avoid testing for the coronavirus, thereby facilitating the disease’s spread.
Severe restrictions on migration actually damage public health in the long run. Immigrants contribute disproportionately to medical care and innovation. The Trump order includes an exemption for current medical professionals, but not for scientists or those who might become medical workers after entering the country.
The wage-competition rationale for the new policy is equally specious. Economists consistently find that most Americans’ wages actually benefit from immigrant labor. That is the case even during times of severe recession and unemployment, such as the present. A study by the National Bureau of Economic Research found that the mass deportation of Mexican workers during the Great Depression did not result in increased wages for American workers, and may even have lowered them. Far from helping American workers, barring immigrants is likely to make the economy less productive. The recent expansion of Trump’s immigration ban to cover a wide range of work visas will damage the economy further, particularly by reducing innovation, to which H1-B-visa recipients are important contributors.
At the very least, neither the coronavirus crisis nor the supposed wage effects can justify a categorical ban that applies to virtually all immigrants seeking permanent residency, regardless of their circumstances and regardless of whether the individuals in question pose any kind of public-health or economic risk.
Trump’s new immigration restriction is also a dangerous constitutional-power grab. Like Trump’s earlier, more limited “travel bans,” the new policy relies on 8 U.S.C. Section 1182(f), which gives the president the power to bar entry into the U.S. by any foreign national he deems “detrimental to the interests of the United States.” In Trump v. Hawaii, the 2018 Supreme Court ruling that upheld Trump’s travel ban targeting several Muslim-majority nations, Chief Justice John Roberts’s majority opinion interpreted this language as giving the president virtually unconstrained power to exclude any foreigners for any reason, so long as he claims—even without evidence—that their entry might harm American “interests.”
Trump v. Hawaii did not consider the possibility that this view of Section 1182 violates the “nondelegation” doctrine: the principle that Congress cannot delegate sweeping lawmaking power to the executive. In last year’s ruling in Gundy v. United States, both liberal and conservative justices indicated the real limits on that delegation of power. In a dissenting opinion joined by two other conservatives, Justice Neil Gorsuch emphasized that the Constitution does not allow the president to exercise “the power to adopt generally applicable rules of conduct governing future actions by private persons.” Only Congress may do that. Justice Elena Kagan’s plurality opinion for the Court held that Congress may not give the president “‘unguided’ and ‘unchecked’ authority” to determine the scope of a law, especially when violations carry criminal penalties. Trump’s use of Section 1182 to impose a sweeping ban on immigration pretty obviously makes “generally applicable rules of conduct” for private parties—many millions of them. The recent extension and expansion of the policy applies these rules to even more people. Just as clearly, the idea that the president can exclude any potential immigrant for any reason, subject to the imposition of criminal penalties for violators, is a case of “‘unguided’ and ‘unchecked’ authority,” if anything is.
If we are serious about nondelegation limits on presidential power—as conservatives, in particular, claim we should be—then the courts must either strike down Section 1182(f) or rethink the broad interpretation of the law adopted in Trump v. Hawaii. For its part, Congress should consider repealing Section 1182, or at least imposing tighter limits on its scope. Unless and until that happens, Trump’s green-card and employment-visa bans will remain dangerous precedents for future presidents.