The Volokh Conspiracy
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Yesterday, major US business associations, including the US Chamber of Commerce, the National Association of Manufacturers, and others, filed a lawsuit challenging President Trump's suspension of nearly all employment visas for immigrants, until at least the end of this year. The complaint is available here. The case could result in a ruling with important implications for administrative law, immigration, and separation of powers.
Stuart Anderson has a helpful summary of the issues the lawsuit raises in an article in Forbes:
Major U.S. business organizations used strong language in a legal complaint to dispute a recent Trump administration action to block foreign nationals from entering the United States to work. "The proclamation takes a sledgehammer to the statutes Congress enacted with respect to high-skilled and temporary worker immigration," argued the business groups in a new lawsuit filed against Donald Trump's June 22, 2020, presidential proclamation. "While the President's powers under Section 212(f) are broad, they do not authorize the President to nullify duly enacted statutory provisions."
The recent proclamation suspended the entry of foreign nationals on H-1B, L-1, H-2B and (most) J-1 temporary visas until at least December 31, 2020. The plaintiffs argue that overrides Congress. "The proclamation is unlawful: It exceeds the statutory and constitutional authority of the Executive, and thus the federal departments and officials involved may not lawfully implement or enforce it," according to the plaintiffs. They note that Congress has passed laws to balance the interests of workers, businesses and the U.S. economy.
The plaintiffs argue the proclamation both exceeds the executive branch's authority and violates the Administrative Procedure Act because it is "arbitrary and capricious and not rationally tied to its stated goal." They cite a large body of economic research showing H-1B visa holders (and others) are likely to create additional jobs and write, "There is no basis to conclude that exempting this wide swath of workers from the United States will have a material impact on unemployment rates of U.S. citizens…."
The business organizations argue the decision to block H-1B visa holders, who work primarily in computer-related occupations, on "unemployment" grounds was not rational given the economic data available at the time of the proclamation. The plaintiffs cited a National Foundation for American Policy analysis of Bureau of Labor Statistics data that showed the unemployment rate for individuals in computer-related occupations remained stable in the United States between January and May 2020….
To prevent the entry of visa holders, in the June proclamation Trump used Section 212(f) of the Immigration and Nationality Act (INA). The Supreme Court decided a case on the president's use of 212(f) in Trump v. Hawaii (the travel ban decision). The plaintiffs objected to the use of Section 212(f) in the latest proclamation: "The foregoing limitations to the scope of the President's authority – including that the Executive may not use Section 212(f) to invalidate duly enacted statutes, that the Executive may not use Section 212(f) in response to a purely domestic economic concern, especially where Congress has addressed the issue, and that the Executive's use of Section 212(f) must be accompanied by rational 'find[ings]' – ensure that authority Congress has bestowed on the President in Section 212(f) is constitutional."
The plaintiffs argued, "If, by contrast, Section 212(f) contains no such limits on the scope of Executive authority, then the proclamation is ultra vires because Section 212(f) effects an unconstitutional delegation of 'the Legislative Power' in Article I, and thus cannot confer lawful authority upon the President. Properly construing the INA as limiting the President's ability to impose the proclamation, however, avoids the grave constitutional doubts otherwise raised by the nondelegation doctrine." (Emphasis added.)
The plaintiffs' Administrative Procedure Act argument could get a boost from the Supreme Court's recent ruling in the DACA case, where a 5-4 majority ruled against Trump's attempt to shut down DACA, because the administration had failed to consider key aspects of the policy, and had ignored relevant reliance interests. In this case, similarly, the administration appears to have ignored the condition of the industries that employ employment visa holders (particularly H-1B visas, which are used by the high tech industry) and also ignored the reliance interests of employers, consumers, and others who depend on these workers. The proclamation could thus be ruled "arbitrary and capricious" under the APA, for reasons very similar to those that doomed the administration in the DACA case.
The administration's claim that a near-categorical ban on work visas is necessary to help American workers is at odds with numerous analyses by economists (which show that immigration restrictions do as much to reduce native-born employment as increase it, even during times of crisis such as the Great Depression), and with evidence indicating that immigrant students (severely restricted by the ban on new J-1 visas) and high tech workers are especially crucial to American innovation, which in turn helps facilitate economic growth. Caleb Watney of the conservative R Street Institute recently summarized that evidence here.
The administration is not legally required to base his policies on sound economics. But the DACA ruling suggests it must at least consider these issues—and associated reliance interests.
It's also possible the plaintiffs could prevail on their arguments that the president's authority under Section 212(f) of the Immigration and Nationality Act is limited by Congress' enactment of a visa system for various categories of immigrant workers. However, it will not be easy to overcome the very broad (and in my view, incorrect) interpretation of Section 212(f) that the Supreme Court adopted in Trump v. Hawaii, the 2018 travel ban case.
Section 212(f), codified as 8 USC Section 1182(f), gives the president the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." In Trump v. Hawaii, Chief Justice John Roberts' majority opinion interpreted this as giving the president the power to exclude almost any alien he wants, so long as he makes a finding that the person's presence is "detrimental to the interests" of the US. Under Roberts' logic, the president need not prove that supposed threat to US "interests" is real, and there is no limitation on what qualifies as a relevant "interest."
The business groups argue there are some limitations on Section 212(f) even in the wake of Trump v. Hawaii. But if the plaintiffs do not prevail under the APA, and cannot persuade the courts to adopt a more limited interpretation of Section 212(f), the case could come down to the nondelegation issue. That question was not addressed in Trump v. Hawaii, and thus could be used to limit the president's power without in any way overruling or limiting the scope of that decision.
I described the importance of the nondelegation issue—and why the Supreme Court's 2019 decision in Gundy v. United States strengthens the case against Trump's sweeping use of Section 212(f)—here and here:
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.
As the plaintiffs note in their complaint, courts could adopt a narrower interpretation of Section 212(f) in order to avoid the constitutional problems raised by the broad view relied on by the administration. Supreme Court precedent requires courts to interpret federal law to avoid constitutional problems whenever it is "fairly possible" to do so.
There is, of course, always a chance that a majority of Supreme Court justices will decide they are not serious about enforcing nondelegation in any meaningful way. Alternatively, it's possible (though I hope not likely) that the five conservative justices will create a kind of ad hoc exception to nondelegation specific to immigration policy. I criticized such ideas here. It could potentially happen. But the conservative justices likely realize that if they start creating exceptions for issues to nondelegation where it's politically convenient for the right, liberal justices will do the same on other issues. The end result will be a nondelegation doctrine that is little more than a paper tiger, if that.
Historically, judicial enforcement of constitutional constraints on government power is effective only if it gets at least some substantial buy-in from judges on both right and left. That won't happen with the nondelegation doctrine, if conservatives decide to exempt immigration policy from its scope.
If the employer groups prevail in this case, it could also pave the way for successful legal challenges to Trump's draconian near-total ban on entry by people seeking permanent residency in the United States, which is subject to most of the same sorts of objections as the ban on work visas, especially the nondelegation argument. The nondelegation issue can also be used to challenge Trump's earlier, less extreme, travel ban policies.
Because of the implications for immigration, the APA, and nondelegation, this could turn out to be an extremely important case. There is, however, a chance that it will get resolved before appellate courts have an opportunity to weigh in on it. If Joe Biden wins the presidential election, he is likely to repeal all or most of Trump's new executive immigration restrictions (and the earlier travel bans), thereby potentially rendering this litigation moot.