The courts and the White House were busy on the last day of 2020 on immigration.
In an opinion by Judge Daniel Collins, joined by Jay S. Bybee, the U.S. Court of Appeals for the Ninth Circuit held in Doe#1 v. Trump as follows:
“On October 4, 2019, the President of the United States issued Proclamation No. 9945, entitled `Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order [t]o Protect the Availability of Healthcare Benefits for Americans.’ The Proclamation restricts entry of immigrant visa applicants who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses. . . . In November 2019, the district court granted a universal preliminary injunction blocking the implementation of this Proclamation. . . . We conclude that the Proclamation was within the President’s statutory authority and therefore reverse the district court’s order enjoining the Proclamation’s implementation.” (citations omitted) (bold and link added).
Judge Wallace Tashima dissented:
“I agree with the district court . . . and with the motions panel of this court . . . that Plaintiffs are likely to succeed on the merits of their ultra vires cause of action because [the] Presidential Proclamation . . . purports to override immigration policies adopted by Congress. The Proclamation overrides both the Affordable Care Act (“ACA”), which makes recently arrived lawful immigrants eligible for subsidized health insurance plans, 26 U.S.C. § 36B(c)(1)(B), and the public charge rule of the Immigration and Nationality Act (“INA”), which comprehensively addresses the circumstances under which individuals may be excluded from this country due to their limited financial means or the financial burdens they will place on others, . . . Although § 212(f) of the INA, 8 U.S.C. § 1182(f) (`§ 212(f)’), `grants the President broad discretion to suspend the entry of aliens into the United States,’ Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018), it does not authorize a President to override congressional policy judgments. The Proclamation therefore exceeds the President’s authority under § 212(f).
Even if that were not the case, I would have grave doubts for other reasons about whether the Proclamation falls within the authority delegated to the President under § 212(f). In contrast to the order upheld by the Supreme Court in Trump v.
Hawaii, Proclamation 9945 has no nexus to national security, addresses a purely domestic concern (uncompensated health care costs), lacks any conceivable temporal limit, and works a major overhaul of this nation’s immigration laws without the input of Congress—a sweeping and unprecedented exercise of unilateral Executive power.”
Photo courtesy of the White House website
President Trump also issued an immigration proclamation on New Year’s Eve. He released an extension of the proclamation “Suspension of Entry of Immigrants and Nonimmigrants who...
