Since becoming president, Donald Trump has used the previously obscure authority in 212(f) of the Immigration and Nationality Act more than any previous president and in ways critics view as dangerous. He may use this authority again in the new future to block the entry of foreign-born scientists and engineers on H-1B visas.
“President Trump has also employed § 212(f) to impose restrictions that are broader than those most commonly imposed by his predecessors,” noted a recent analysis from the Congressional Research Service. “These broader restrictions include . . . the entry of categories of nationals of seven countries and on the entry of aliens as immigrants from an additional six countries; a suspension of the entry of immigrants who lack health insurance; and, most recently, the suspension of the entry of most immigrants for 60 days during the economic recovery from Covid-19.”
To better understand this previously little-noticed provision of U.S. immigration law, and how the courts and Congress might limit a president’s use of it, I interviewed Ilya Somin, a law professor at George Mason University and author of the new book Free to Move: Foot Voting, Migration, and Political Freedom.
Stuart Anderson: What is section 212(f) of the Immigration and Nationality Act?
Ilya Somin: Section 212(f), codified as 8 USC Section 1182(f), gives the president the power to bar entry into the U.S. by any foreign national whom he deems to be “detrimental to the interests of the United States.” Here’s the full text: “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.”
The Trump administration claimed – and the Supreme Court, in Trump v. Hawaii, the travel ban decision, largely agreed – that this gives the president authority to bar the entry of almost any noncitizen for virtually any reason he wants.
Anderson: Do you think Donald Trump has overstepped his authority in using 212(f)?
Somin: I believe he has done so for three reasons. First, I don’t believe this ultrabroad interpretation of Section 212(f) is sound. At the very least, the better reading is that it is limited by other laws Congress has enacted since then, which forbid various types of discrimination in immigration law (e.g., on the basis of nationality in issuing visas), and also give refugees the right to apply for asylum. “Last in time is first in law” and those later-enacted laws limit any discretion the president has under earlier ones.
Second, if Section 212(f) really does give the president virtually unlimited authority to bar noncitizens from entering the U.S. whenever he pleases, then it would run afoul of the “nondelegation” doctrine, which limits Congress’ ability to delegate its powers to the executive.
Admittedly, it is often difficult to tell what qualifies as an excessive delegation. But the delegation of unlimited power to exclude any alien for any reason is surely a violation of the nondelegation principle if anything is. In last year’s Supreme Court decision in Gundy v. United States, both liberal and conservative justices indicated a willingness to put some teeth into the nondelegation doctrine. Interestingly, the conservatives are actually much more aggressive on this score than the liberals.
The administration’s interpretation of Section 212(f) runs afoul of both the more permissive standard outlined in Justice Elena Kagan’s plurality opinion and the more robust one developed in Justice Neil Gorsuch’s dissent on behalf of three conservatives. The Gorsuch opinion may well become the law in the future, as it could eventually be endorsed by all five conservative justices (one of whom, Justice Kavanaugh, did not participate in Gundy).
If the Supreme Court is serious about nondelegation, it will eventually have to either strike down Section 212(f), interpret it more narrowly, or create what would be an ad hoc exception to nondelegation rules for immigration policy.
I discuss the nondelegation issue and its application to Section 212(f) more fully here.
Anderson: What did the Supreme Court decide about 212(f) in the travel ban decision?
Somin: In Trump v. Hawaii (2018), the travel ban case, Chief Justice John Roberts’ majority opinion largely endorsed the Trump administration’s very broad view of Section 212(f). Roberts’ wrote that the law is a “comprehensive delegation” that “exudes deference to the President in every clause.” The Court rejected the argument the discretion granted by Section 212(f) was limited by later enacted laws forbidding national discrimination in the issuance of visas, claiming that visas are distinct from the right to enter the United States.
The Court also rejected the argument that Trump’s policy violated the First Amendment ban on religious discrimination because it deliberately targeted residents of Muslim-majority nations in order to fulfill Trump’s notorious campaign promise to institute a “Muslim ban.” They ruled against the plaintiffs on that issue primarily because the majority justices believe that the Court should grant special deference to the president on immigration law issues that would not apply in other contexts.
However, it is important to note that the Court did not address the argument that the broad interpretation of Section 212(f) violates the nondelegation doctrine. That issue remains open, perhaps to be decided in a future case.
Anderson: Why do you think the Supreme Court was wrong?
Somin: The Court’s ruling was badly misguided on both the statutory question and the constitutional one. On the former, the distinction between visas and entry strikes me as specious, given that the whole point of getting a visa is to obtain the right to enter the United States. A visa that does not grant the holder a right to entry is basically worthless, except perhaps as toilet paper.
On the constitutional issue, the Court swept under the rug the overwhelming evidence that the travel ban order served no legitimate national security purpose, and that the true motive was religious discrimination. The national security justification offered by the administration was transparently bogus, bordering on outright fraud.
The idea that such judicial abdication is justified because courts must give special deference to the executive on immigration policy has considerable basis in precedent. But it is at odds with the text and original meaning of the Constitution and has its roots in the racism and xenophobia of the same era that gave us Plessy v. Ferguson.
Hopefully, a future Court will revisit these issues and correct at least some of the egregious errors the majority made in Trump v. Hawaii. In the meantime, nothing in that ruling prevents the court from striking down Section 212(f) or narrowing its interpretation of it, based on the nondelegation doctrine, as described above.
Anderson: A bill passed the House Judiciary Committee this year that sought to address the Trump administration’s travel ban. What do you think of that bill?
Somin: I support it. The bill would make clear that the nondiscrimination provision the majority refused to apply in the travel ban cases applies to “entry” as well as the issuance of immigrant visas. That fixes the problem the Court created with its dubious distinction between the two. It also makes clear the restriction applies to nonimmigrant [temporary] visas as well as those for immigrants, and explicitly bans discrimination on the basis of religion when it comes to both visas and entry.
All of these points are steps in the right direction – though they are necessary only because the Court erred so badly in Trump v. Hawaii.
Anderson: How would you recommend changing 212(f) to limit the authority of future presidents?
Somin: The best option would be to just repeal it entirely. As Trump has shown, the power granted by the statute is ripe for egregious abuse.
He has used it to adopt multiple travel bans with no meaningful justification, and now has used it to suspend nearly all entry into the United States by migrants and refugees seeking permanent residence – a massive power grab that has made the U.S. more completely closed to migrants seeking to make this country their permanent home than at any other time in many decades, perhaps in our entire history. Never previously has the range of people eligible to enter the U.S. in search of permanent residence been defined so narrowly. There are already other laws that address genuine threats to national security, such as those allowing the government to apprehend criminals, terrorists and the like.
Anderson: As currently used, such as by preventing the entry of most new immigrants from entering the United States, much of the immigration law Congress passed seems now to be at the discretion of the president, since a president using 212(f) can override laws passed by Congress. Can Congress play a role?
Somin: Congress could replace Section 212(f) with more limited authority allowing the president to bar entry only for specified reasons, such as a threat to national security or participation in organized crime or the like. When the president uses the authority to exclude they could also require the executive to provide substantial evidence indicating that the persons in question really do pose a threat of the sort specified in the revised statute.
Congress could direct courts to take a nondeferential approach to such issues. Instead of just taking the president’s word for it, the administration can be required to prove its case by at least a preponderance of evidence – the normal standard of proof for civil litigation. Higher standards might be required in cases where the president bars very large numbers of people or imposes exclusions that last for a long period of time.
Finally, if Congress thinks the president needs to take quick action in the midst of a sudden crisis, it could impose a sunset clause on exclusions imposed by the executive under Section 212. After, say, 60 days, such restrictions would automatically expire unless Congress affirmatively passes a bill to extend them. This would give the president flexibility to deal with emergencies, but also prevent him from using Section 212(f) to enact permanent immigration restrictions, as Trump has done with his travel bans.
Anderson: Can a new president simply withdraw all of the previous president’s proclamations and executive orders on immigration (or any other issue)?
Somin: Yes, he most certainly could. Policies that live by the sword of unilateral executive power can just as easily die by it. In the case of policies that were enacted through “notice and comment” administrative processes, repeal would have to go through the same avenue. But that is not the case with the vast bulk of Trump’s controversial immigration policies, which were simply adopted through executive orders or “proclamations.”