It’s not an exaggeration to say that the total ban on immigration that US President Donald Trump announced by tweet is among the most extreme acts of unilateral executive authority attempted by any president since World War II.
It will generate immediate legal challenges, and the ensuing litigation will reach the Supreme Court sooner rather than later.
“In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump noted, “I will be signing an Executive Order to temporarily suspend immigration into the United States!”
The new ban is similarly intended to distract attention from his mishandling of the pandemic and move the conversation back to a topic he thinks favours him. The blatant political motive undercuts the validity of Trump’s stated reasons
It’s tough to predict what the legal result of any challenges to it will be. But the court’s Trump v. Hawaii decision upholding the president’s Muslim ban provides some guidance.
Federal law authorises the president to “suspend the entry of all aliens” into the United States whenever he “finds” that their entry “would be detrimental to the interests of the United States.”
To suspend all immigration now, the Trump administration will have to explain why allowing any immigrant into the country would be detrimental to US interests.
In practice, that means the government will have to provide a reason for the ban that is based on facts, not mere presidential fiat.
Close legal scrutiny
But under the Trump v. Hawaii precedent, the court may not look very closely at those reasons. In that case, the Supreme Court first said that the law “exudes deference” to the president. Then it went on to reject the idea of a “searching inquiry” into whether the Trump administration’s justifications were valid.
That said, challengers to the new ban would have some strong arguments about why its absolute nature goes too far.
To the extent the order is about protection against Covid-19, as Trump’s tweet suggested (“the Invisible Enemy”), it would seem irrational to bar immigrants who have been tested and found not to have the virus, or who have been previously exposed to the virus and may now be immune.
To the extent the order is about protecting US jobs, it would seem illogical to bar immigrants who don’t hold work visas, or immigrants who have work visas based on the premise that no US person is available to take the job.
Where the rubber will meet the road is where Chief Justice John Roberts, sure to be the swing vote, has to consider how seriously to take these sorts of objections.
On the one hand, it will be obvious that Trump has issued the ban to try to get himself re-elected. This immigration ban will function as a bookend to Trump’s first term, when the Muslim ban fulfilled a campaign promise that helped him get elected in 2016.
This new ban is similarly intended to distract attention from his mishandling of the pandemic and move the conversation back to a topic he thinks favours him. The blatant political motive undercuts the validity of Trump’s stated reasons.
On the other hand, in the Trump v. Hawaii case, it was Roberts himself who created the precedent of strong deference.
Having refused to allow Trump’s Islamophobic motives to invalidate the Muslim ban, Roberts may be disinclined to block the president’s actions in a situation where there is an actual emergency like a pandemic.
To make matters more complicated, the Trump administration is likely to create exceptions when it formulates this ban. Lawful permanent residents — green card holders — will be able to come and go.
A ban would also likely exempt many other valid visa-holders; the disruption of denying the entry could just be too great.
Then there will be the question of timing. Roberts will really hate making a major decision of this kind with a presidential election looming. He’d like to reduce the perception that the court’s decisions have a partisan character.
Yet the court will presumably have no choice but to rule before the 2020 election. The issue will be too pressing; different courts of appeals are likely to take different positions; and avoiding a decision before the 2020 election could look like an endorsement of Trump’s order.
The upshot is that we’re going to be talking about this ban a great deal for the next several months.
Democrats will no doubt find this reality politically frustrating. Trump no doubt wants to change the subject away from his pandemic response; the press will now appear to be acquiescing in Trump’s manoeuvre.
Unfortunately for the Democrats, however, there is no principled reason to ignore a radical ban like the one Trump is introducing.
Its legality is doubtful. It’s a naked ploy to help Trump win the 2020 election. It will and should be challenged in court.
Noah Feldman is a columnist and author. He is a professor of law at Harvard University.