The Volokh Conspiracy

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Travel Ban, Redux

President Biden invokes Section 212(f) of the INA to block asylum seekers from entering the United States.


On Tuesday, President Biden issued a travel ban of asylum seekers:

The entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation. This suspension and limitation on entry shall be effective at 12:01 a.m. eastern daylight time on June 5, 2024. The suspension and limitation directed in this proclamation shall be discontinued pursuant to subsection

The order invokes Section 212(f) of the INA, or for those who are not immigration lawyers, 8 U.S.C. § 1182(f). It provides, in part:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This was the same section invoked by President Trump in each iteration of his travel ban. Between 2017 and 2018, I wrote more about Section 212(f) than I'd care to recall. In Trump v. Hawaii, Chief Justice Roberts described the provision with sweeping language:

By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliensor any class of aliens"); for how long ("for such period as heshall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate"). It is therefore unsurprising that we have previously observed that§1182(f) vests the President with "ample power" to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187 (finding it "perfectly clear" that the President could "establish a naval blockade" to prevent illegal migrants from entering theUnited States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the "sweeping proclamation power" in §1182(f) as enabling the President to supplement the other grounds of inadmissibility in theINA).

In the wake of Trump v. Hawaii, there were calls to repeal Section 212(f). I was skeptical that even a Democratic President would remove such a potent weapon from his executive power arsenal. (There is a reason that Congress did not enact any of the Post-Trump reform of the executive branch.) And after nearly four years of a Biden Presidency, Section 212(f) remains intact.

The policy went into effect about thirty minutes ago. The Northern District of California has not yet enjoined the policy, but it will. Judge Tigar probably has a macro for these sorts of TROs. I'm sure the Department of Justice will go through the motions to defend the policy. But does the Biden DOJ actually want to win here? Wouldn't the best case scenario be for Biden to take political credit for doing something about the border, and then blame the courts not allowing him to do so something, as his supporters will be content that asylum seeker scan continue entry? I wonder if any DOJ lawyers will refuse to sign the briefs, as some did with the Trump orders.