President Trump, Politics and the Limits of Executive Power
President Trump recently announced that he would halt immigration to the US, citing the COVID-19 pandemic and rampant unemployment caused by the shutdown of the US economy in response to the pandemic. Specifically, he said: “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States.” Since he sent out his tweet, our email inboxes have been flooded with reasonably concerned clients. How does Trump’s announcement affect US immigration policy?
The answer is there will be very little impact. You may remember his attempt when he was first installed in office to ban immigration to the US, commonly known as the Travel Ban 1.0. As we at Davis & Associates expected, the executive order was deemed unconstitutional in a matter of days and was thrown out by the US Federal Courts.
He tried again in Travel Ban 2.0. That was closer to a reasonable exercise of his power as President, but it also was challenged and was not implemented. His final effort, Travel Ban 3.0 is still in place and is causing difficulties for people seeking to immigrate to the US. However, its scope was very limited. Although the ban is still in place, Iraq was removed from the list of banned countries when it got in line with the President’s demands for information sharing and other security protocols. Other countries could choose to do the same as Iraq and could be removed from the list. Plus there is an option for a travel ban waiver that the US consulates can grant if it deems them to be appropriate. The difference between Travel Ban 1.0 and Travel Ban 3.0 is significant.
Separation of Powers
The reason the courts intervened against President Trump’s use of executive authority is related to the concept of separation of powers in the government of the United States. The US Constitution specifically outlines the powers of each branch of the government: the Executive, which includes the President and the bureaucracy such at USCIS and the Department of Homeland Security, and is tasked with enforcing the law; the Legislative, which includes the US House of Representatives and the US Senate; and the Judiciary, which includes the federal court system, including US Federal District Courts, US Courts of Appeals, and the Supreme Court.
Each branch of the federal government checks the power of the other. For example, Congress passes laws, but it has no power to enforce the laws it passes. That is the President’s job. The President doesn’t have the power to create law, but he can decide how to enforce the law Congress passed. The Supreme Court can review the laws passed by Congress and the actions of the President. It could declare that a law passed by Congress or how the President is enforcing US laws to be out of line with the US Constitution and void them. The President appoints judges to serve on the US Federal Courts. Congress can seek to amend the US Constitution. These are some examples of how the three branches of the US government check each other, with the intent of keeping as much power with the people as possible.
Additionally, there is little doubt that this tweet was really just a political move. I don’t fault the President for using his executive power to further his political aims. I believe President Obama, who has the record for deportations as President, would not have been reelected in 2012 if he had not used his executive power to institute the Deferred Action for Childhood Arrivals (DACA) program. That exercise of power provided an opportunity to many people I care about.
At this point, we don’t have any details about how he is going to “suspend immigration.” Presumably, he will temporarily stop the issuance of visas to the US. That could include temporary visas, such as student, tourist and work visas, and immigrant visas, commonly known as green card visas. What impact would that have on us right now? It will have absolutely no impact whatsoever.
How can I say that so confidently? The reason is that the consulates are already closed! If they aren’t setting appointments for visa applications at this time because they are shut down for COVID-19, then what will “suspending immigration” do to those who are seeking visas to come to the US? Nothing. No visas are being issued right now anyway while the consulates are not operational due to the shut down in response to COVID-19. This was mostly a political move rather than a move out of concern for the American people.
What about people who already have visas or green cards?
I believe it will be very difficult for the President to issue an executive order refusing the entry of anyone who already has a visa or green card. He tried that already, in travel ban 1.0, and it was promptly overturned by the courts. I do not expect he would try that again. The risk of this happening is very low.
He could order USCIS to stop processing petitions, such as H-1B professional worker petitions. The issue with that idea is that the people seeking those petitions have paid the government a fee, in some cases a very sizeable one. If the President were to order USCIS to stop processing work that people have paid for, he would be sued and I have little doubt he would lose that fight. That is unless he plans on refunding everyone’s money. I can’t see President Trump being willing to sign a bunch of checks giving millions of people their money back.
At this point, all we can do is wait to see what the executive order looks like when it finally comes out. We will give you all our take on it when it is finally released. No one would accuse President Trump of being afraid of hyperbole, and I believe this is mostly that. The net effect of his announcement may impact the polls and the ballot boxes, but at this point, I do not believe panic or concern is warranted and I do not expect a significant impact on immigration in the United States. Stay tuned for more details from us as the executive order materializes.