Immigration

Biden Revokes Trump's Coronavirus Immigration Bans [Updated with a correction]

This action brings to an end a period when the US was more closed off to legal immigration than at any other time in the nation's history.

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The Statue of Liberty.

 

Earlier today, President Joe Biden repealed Trump's coronavirus immigration bans, which barred nearly all new immigrants entering for the purpose of seeking permanent residency, and also severely restricted entry based on many types of temporary work visas [but see update on the latter, below]. In combination with Trump's previous large-scale efforts to cut immigration of virtually all types, the 2020 executive actions had closed the US to immigration to a greater extent than at any previous time in its history, even during crises such as the world wars and the Great Depression.

I criticized the public health and economic rationales for the Trump policy in this June 2020 Atlantic article. Far from improving the economy and public health, these types of policies actually make both worse. The harm would have been much greater had the bans continued indefinitely, as Trump administration officials  said they intended to do. In the long run, immigration restrictions stifle economic and scientific innovation of the very type that is essential to boosting economic growth and generating improvements in health care, such as the Covid vaccines that are our best hope for ending the pandemic.

It is possible that Biden's repeal of the Trump policy will be challenged in court by immigration restrictionists. But any such challenge is highly unlikely to succeed. If, as the Trump administration contended, these immigration bans were purely a matter of presidential discretion, then Biden has the power to repeal them as Trump had to institute them in the first place. If, on the other hand, the Trump policy was illegal, as I and other critics contended, then Biden had even more justification for repealing it. Indeed, in that scenario, he had a legal duty to do so.

In October 2020, a federal district court ruled against the Trump ban on work visas on several grounds, including that it violates constitutional nondelegation principles. I outlined the nondelegation case against Trump's Covid immigration restrictions and earlier travel bans here, here, and here.

Biden's repeal of Trump's policy will moot out the litigation against the latter [but see update below], and probably prevent it from setting any lasting precedent (district court decisions are not binding precedent for future cases). But, hopefully, future court decisions will establish the principle that it is unconstitutional for Congress to give the president virtually unconstrained authority to bar any immigrants he wants, for virtually any reason—as is true under the Trump administration's interpretation of Section 1182(f) of the Immigration and Naturalization Act. The Trump position was largely endorsed by the Court in Trump v. Hawaii (2018)  But that ruling did not address the nondelegation issue.

Alternatively, the nondelegation problem can be solved by congressional action. The No Ban Act, introduced by congressional Democrats last year, and incorporated into the Biden administration's new US Citizenship Act, would largely fix the problem by imposing tight constraints on presidential authority in this field.

Biden's willingness to repeal the Covid immigration restrictions is a further sign that the new administration is serious about pursuing a pro-immigration agenda. Some observers doubted whether Biden would be willing to repeal these policies, lest he be accused of exacerbating the risks of the Covid emergency (even though the Trump bans did not actually help curb the spread of the virus); I admit I was among the doubters, myself. But I'm more than happy to be proven wrong on this point. I reviewed the administration's other  immigration initiatives—many of which go well beyond simply repealing harsh Trump policies—here.

This is not to say that Biden's approach is ideal. Even if fully realized, it would not come close to eliminating all of the many injustices in our immigration system. I myself have pointed out how the pro-immigration policies are at odds with the the new administration's push for a $15 minimum wage (which would lock many new immigrants out of the labor market). Fortunately, it looks like the latter idea won't get through Congress, in large part because of opposition by key moderate Democratic senators.

David Bier of the Cato Institute has a more pessimistic appraisal of the new administration's policies(though written before today's action). But, by any reasonable measure, Biden's policies are at least a vast improvement over his predecessor—admittedly a very low standard of comparison.

UPDATE: I should note that  part of the ban on employment visas remains in place, though is set to expire on March 31, unless Biden chooses to extend it. This also means the lawsuit against that aspect will continue, at least for now. I apologize for overlooking this in my initial post.

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  1. “Far from improving the economy and public health, these types of policies actually make both worse. ”
    But when other countries temporally banned entrance that made sense. Sure.

    1. International movement restrictions, including immigration restrictions, make all sorts of sense during a global pandemic. Especially when new variants are being seen globally and potentially introduced to new areas.

      This is a horrible, anti-science policy by Biden which may kill thousands more

    2. Pretty sure Somin didn’t say other bans made sense.

      1. Somin must advocate for recognition of the Indian law license. Import a million lawyers, speaking the King’s English, who will be happy to be law professors for $20000/year.

  2. This shows the hypocrisy in an administration that wants to prevent Americans from traveling domestically — we can’t, but others can.

    Talk about a second class status in your own country…

    1. Anything to penalize Americans. They don’t like Americans and don’t think we deserve what everyone else deserves.

      1. No, they are agemts of the tech billionaires. They did well in 2020. Profit was $1.3 trillion higher than in 2019. They now also control the 3 branches of government.

  3. Everything gets shoehorned into justifying open borders by certain interests, and applied to this country pretty much alone.

    Meanwhile, scary COVID COVID!!!!!! on an out-going basis only. All newcomers more than welcome, while we’re not welcome anywhere.

    1. “. . . while we’re not welcome anywhere.”

      Maybe that says something about us.

  4. The lesson here? Resist as a long as you can, including all forms of lawfare, and the swamp will eventually engulf the efforts at reform.

    1. I thought the lesson was that in a democracy, when you’re an unpopular loser who loses elections, policies that you support will be changed by more popular people who win elections.

      1. Except that Hillary did lose and her fellow travelers set themselves the goal of slow-rolling everything with the anticipation of Trump being four and out.

      2. The lesson is to back up the truck at 3 AM with unfolded mail ballots. Republicans should do the same.

  5. These immigrants will flood into the country to provide the Democrat Party with more fake voters. They will turn this nation into a permanent one party state, as their shit hole states are. They will have permanent cheating protocols.

    These immigrants will will be tax sucking parasites. They will replace all those Democrat constituents that got higher paying jobs in the Trump economy.

    Somin must support recognizing the Indian law licensing. 1.3 million lawyers, speaking the King’s English, would love to come here, and to make $20000/year, teaching law school.

    1. Maybe you should try working harder, so that you can outcompete someone whose sole credentials are speaking English and having a law license issued by a foreign country.

  6. Lawyer Somin represents the interests of the billionaire owner of Reason. The rising wages of even the lowest paid workers cut into billionaire profits. So Trump had to go. Now they totally own this country. No one stands in their way, to resist these billionaires. Democrat constituencies will suffer most.

    Attacking Congress, killing lawyers and judges, arresting governors are a total waste of time. These billionaires should live as Saddam did, never sleeping 2 nights in the same apartment, cooking rice in underwear.

    1. There is, of course, no “billionaire owner of Reason.” And Behar is a racist.

      1. David, what are you a child? Grow up. Koch gave this magazine $2 million to survive.

        1. Setting aside the made-up fact, that would make him a donor, not an owner.

  7. Somin brings up the non-delegation doctrine. Along with Article I Section 1 of the constitution, giving all law making powers to Congress, voids all executive branch regulations.

    Let Congress ratify the 10000 page Federal Register every year if it wants regulations. It is passing gigantic legislation without reading by the members of Congress. It can do the same for regulations.

  8. “It is possible that Biden’s repeal of the Trump policy will be challenged in court by immigration restrictionists. But any such challenge is highly unlikely to succeed…. If, on the other hand, the Trump policy was illegal, as I and other critics contended, then Biden had even more justification for repealing it. Indeed, in that scenario, he had a legal duty to do so.”

    Interesting.

    Didn’t Trump try to repeal an illegal Obama policy for the same reason, only to have the courts block him? Something about Trump not having articulated a sufficient basis for acting?

    1. Trump has argued that immigration is an area of especially high Presidential discretion.

      Plus, no reliance interests I can figure in this case.

      1. I have a reliance interest. My right to be safe from infection during a pandemic. Especially new strains of COVID that are appearing worldwide. That reliance spreads to fiscal reliance from anticipated COVID shutdowns if new strains are imported into the US and religious reliance if as expected religious services are again shut down due to new strains being imported.

        1. That’s not how a reliance interest works. Did you change your behavior at a cost to yourself due to these policies? From the sophistry you just posted, you did not.

          So quit with your bad faith.
          As if immigration is any kind of vector not dealt with via quarantine.

          1. Scientific evidence has demonstrated that Travel Bans can effectively greatly drop the number of COVID cases. Here’s one example with China and Australia, and an 86% drop in cases.

            With new strains popping up worldwide, it is important to minimize all international travel, including immigration.

            https://academic.oup.com/jtm/article/27/5/taaa081/5842100

            Personally, my behavior has changed, and would continue to change, especially if new strains are imported.

            1. Travel != immigration.
              And you haven’t mentioned quarantine.

              Future behavior changes is not a legal reliance interest, don’t play the fool.

              1. Illegal migration is travel. Someone crossing the border surreptitiously would seem to work against any effective Quarantine.

                1. Immigration restrictions are about legal immigration.

                  1. You still have to travel to immigrate.

                    1. This is not a travel restriction either.

              2. Immigration is, by default, a subset of travel. Clearly.

                Limit it until the epidemic is over. It’s not that hard. Save lives.

                1. Existing travel restrictions apply to immigrants too.

                  This is not a travel restriction.

                  1. It’s not hard. Save lives. Trust science. Save lives.

                    Don’t be anti-science and cost people their lives.

                    1. It’s not hard to talk about the policy the OP is about, and not strawman it.

              3. don’t play the fool.

                He doesn’t need to play.

  9. The oligarchy loves you, Ilya. I suppose that is your goal.

  10. For all anyone can say now, to fight an evolving pandemic there may soon come a moment when this nation needs to turn itself into a virtual island, by sealing its borders entirely. Politicians seem systematically to deny themselves the sort of clear insight which would let them recognize such a moment. But if they did, I hope Somin could find flexibility in his advocacy sufficient to withhold criticism.

  11. So every single person who does of Covid from now in is on Biden, who let infected aliens into the country without any restrictions, right?

    1. “dies”

      Spend a few bucks on an edit function, Reason.

      1. Or even just a preview button. I like to hit that then edit until I am satisfied. It’s more than just spelling or grammar. Sometimes my posts mean exactly the opposite of what I wanted to say, or could be misconstrued on reading.

  12. Lock down citizens, open the border.

    Fuck off, Reason.

  13. There was a Volokh blog post where Ilya Somin actually advocated for letting convicted criminals immigrate to the US.

    Can anyone help me find it?

    I would like to post it on every Somin immigration post as part of the background story.

  14. Every 85 IQ mestizo who crosses into America is another Democrat Party vote in a few years.

  15. Wow that’s great, the pandemic is over.

    Oh, wait.

    Hundreds of thousands of small businesses permanently closed from lockdowns, and the Liberal Fascists Liberals are still hammering them with unscientific and unconstitutional bans on being open for business. Meanwhile trillions of dollars and counting accrue to their allies in big biz and big tech as a result.

    Grotesque Faucites still playing a game of let’s see how many security theater face diapers we can make them wear and for how long.

    Asset inflation keeps accelerating, raising costs of housing and basic costs of living. Those with wealth are profiting immensely while the working class struggles . . . Perfect time to throw gas on it by reopening the immigration wage suppression spigot. Permanent government dependency already kicking off with “stimulus payments.”

    1. More US businesses in financial trouble means more opportunities for Ilya’s chosen people (anyone not already here) to start a business and compete.

  16. My view has been that the Constitution gives Comgress plenary power over immigration, amd Congress, wisely or unwisely, has delegated a hige amount of discretion to the President. For this reason, I thought Trump had the same discretion to tighten immigration policy that Onama before him had to loosen it.

    But the Supreme Court disagreed. It said that immigration policy is subject to the APA and Presidents are not free to change policy willy-nilly from administration to administration without formal rule-making and clearly articulated rationales for changing policy.

    Given this decision, I would have to say that conservative judges are now as free to enjoin Biden’s immigration-related executive orders until his administration develops formal rule-making procedures and reasons satisfactory to a reviewing judiciary (i.e. for a long time), as liberal judges were free to enjoin Trump’s.

    One of the reasons for the Trump administration’s end-of-administration agreements with Texas, its unions, and perhaps others was to create the sort of settled expectations that would trigger formal rule-making.

    In my view, this “settled expectations” idea was mistaken. Aliens who are in this country illegally can’t expect anything and their expectations have no legal significance. Courts can no more force a President to parole an illegal alien on grounds the alien has developed a settled expectation of being paroled than they can force a President to pardon a criminal a President doesn’t want to pardon on grounds the criminal has developed a settled expectation of being pardoned. Or order a fetus to be brought to term on grounds that the fetus or the father has developed a settled expectation of being born.

    Immigration, who to permit to enter the country, is as much about aautonomy and sovereignty as abortion, to to permit to enter ones family. The constitution has been traditionally interpreted as permitting unfettered freedom of choice on immigration. And I suspect Justice Barrett in particular, whose opinions about deferring to state officials regarding Covid emergency procedures seem to be made with what she will eventually say in abortion cases in mind, is also mimdful of a potential for analogy between the issue of abortion and the issue of immigration. The similarity is based on more than just the fact that the Due Process Clause has been held to not apply to both fetuses and extraterritorial aliens. Although liberals and conservatives are on opposite sides of these issues and both would soubtless object to treating the two issues as comparable, the pro side in each issue makes remarkably similar arguments to the pro side in the other. And the same with the anti side.

    1. By pro side, I mean pro abortion in the abortion case (we should be free to get rid of unwanted fetuses and moral qualms are for clingers) and pro immigration restrictions in the immigration case (we should be free to get rid of unwanted aliens and moral wualms are for clingers).

  17. We libertarians like immigration because America is the shining city on the hill — come here to live free from dictatorship and corruption and make a better life for yourself and your family!

    Some on the left don’t, working hard to tear down the idea of American exceptionalism.

    We libertarians love immigration, because in an economically free land, the more, the better for all via increased rates of development and problem solving.

    But we are not trying to use that increased immigration to win elections to, paradoxically, increase the rate of new regulatory burdens each year, more and more approximating the same drags on the economy you find in corrupt nations. In other words to thwart the benefits of point 2.

    1. Some on the right also denigrate American exceptionalism.

      Not being for jingoistic nationalism is not the same as trying to tear down American exceptionalism.

      Every standard libertarian stance (pro-trade, anti-state/victimless crimes, natural rights>state-granted rights) unambiguously entails far fewer immigration restrictions.

    2. Just make every primate on Earth a US citizen. Immigration problem solved.

  18. I generally support far fewer restrictions on legal immigration.

    On the other hand, if it’s too dangerous to open schools, eat at restaurants, or go to sporting events, doesn’t that suggest that it might not be a feat to start bringing in more people from overseas?

    1. I generally support fewer restriction on legal immigration, but I also support increased border security. We should at least know who we let into the country and determine they are not a threat. We have enough of our own just now without importing any more.

    2. Immigration restrictions != travel restrictions.

      The Trump admin’s rationale wasn’t disease mitigation, it was economic nonsense, IRRC.

      Separately, travel restrictions seem to me fundamentally different in their formulation, triggers, and purpose than event/business restrictions.
      E.g. many countries just require a 2 week hard-core quarantine and do fine. Can’t do that for a bar.

  19. Immigration is not and never was intended as a procedure to remedy injustice. Not in the US nor anywhere else in the world.

    The people of the US have no obligation to remedy injustice outside the US, and imposing that penalty/duty upon innocent US citizens and legal residents is an injustice itself.

    If you want to remedy injustice for someone, do it at your own expense and leave your innocent neighbors out of it.

    1. People are people, dude.

      Ignoring what’s going on if it’s not our citizens is immoral, and also has some pretty bad practical effects as it turns out.

      Plus, as Prof. Somin has noted, immigration is actually helpful to the US itself.

      1. Import a million lawyers from India. They would love a raise to $20000 a year salary.

        1. I like how anti-immigration zealots always talk about “importing” people and “sending us” people, to disguise the fact that we’re talking about individual choices.

      2. Depends who you let in…neocons? Should have been sent back to Central or Eastern Europe before they got thousands of young Americans killed and hundreds to millions of poor foreigners…sorry we need to be selective in who we let in. I’m all for hard working folks from productive functional places being allowed to become Americans…unwed mothers, drug dealers, grifters..no way

      3. Immigration proponents ignore all the problems and costs they impose on everyone else. Privileged university professors and professionals with law degrees don’t live where poor people live. Their children don’t go to schools that poor kids go to (no one with a choice sends their kids there, but sadly many have no better choices). They don’t worry about not being able to get a decent job or find a safe place to live or any of the other problems they cause for everyone else.

        You make things worse for anyone not already on top, spend money you didn’t earn, make life more dangerous and desperate for poor Americans, and proclaim yourself virtuous by telling a story about how someone was helped in the process of hurting the rest.

  20. America and our system of very limited federal govt and peace (ok not anymore) is predicated on the population believing these things. Allowing millions of folks who do not share our belief in small govt, sound money, and peace to immigrate here has eroded our natural rights and freedom. The million or more socialists and communists allowed in before WWI was not a good thing for freedom. They sold us out to the Soviets, created identity politics, rammed through big govt and wars (neocons) and control the narrative today in academia and the media….sorry we need to be selective on who comes in to ensure our liberties are not voted away by “democracy.” Only freedom loving folks need to apply…not those who only find fault in America and have to “change it” for the “greater good.”

  21. Forgive me for some hyperbole. Maybe Professor Somin would be happy if Congress passed, and the President signed, a law making all primates currently living on Earth (or temporarily off Earth while on a space mission) citizens of the United States. Then we would not have to worry about these pesky immigration laws. We could let the Democratic party designate people to cast votes for all non-human primates.

  22. If it is going to take anything more to get mainstream Americans to recognize liberals HATE their guts this will help push them toward that.

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