President Donald Trump starts with a key advantage in vowing to suspend immigration into the U.S. during the coronavirus outbreak: The Supreme Court appears to be already on his side.
Two years ago, the court said the president has sweeping authority to restrict entry into the country — and might not even have to explain why. That 5-4 ruling upheld Trump’s travel ban, which barred entry from a group of mostly Muslim countries.
The travel ban decision will give Trump powerful legal ammunition should he carry out his immigration pledge. Trump tweeted Monday night that he would sign an executive order to “temporarily suspend immigration into the United States,” though he didn’t offer specifics on the time frame or the scope of who would be affected.
The specifics may not matter. The 2018 Supreme Court ruling pointed to a federal immigration law that lets the president suspend entry of “all aliens or any class of aliens” if the chief executive finds that their arrival would be “detrimental to the interests of the United States.”
That provision “exudes deference to the president in every clause,” Chief Justice John Roberts wrote for the five Republican-appointed justices in the majority. The court’s four Democratic appointees dissented.
Roberts dismissed contentions that Trump hadn’t done enough to justify his travel ban, saying those arguments depended on the “questionable” premise that the law requires the president to give a detailed explanation.
Justice Clarence Thomas went further. In a concurring opinion, he said that, even without federal immigration law, the president “has inherent authority to exclude aliens from the country.”
In his tweet, Trump said he would act “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens.” The Justice Department’s Office of Legal Counsel has been given Trump’s executive order and is reviewing it for form and legality, a department official said Tuesday.
While any suspension will probably face legal challenges, courts will be hesitant to interfere, said Ediberto Roman, a Florida International University law professor who directs the school’s immigration and citizenship clinic program.
“In the context of the pandemic, I would compare his powers to his plenary powers over foreign affairs in times of political or wartime crisis,” Roman said. “If his orders have a rational basis, which is a very low threshold, the high court will in the end likely uphold them.”
Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School, said the travel ban ruling makes any challenge to the new order “an uphill fight.” He said presidential supporters could argue that the difference between the two orders is “just a matter of degree.”
But Somin said he could envision possible lines of attack. “You can also say that the difference in degree is so great that it becomes a difference in kind,” said Somin, a critic of the travel ban ruling.
Depending on how the order is worded, Somin said opponents could also argue that it violates the so-called nondelegation doctrine, a constitutional tenet that says Congress can’t hand off its legislative responsibilities to the executive branch.
The American Civil Liberties Union, which has repeatedly taken Trump to court over his immigration and border policies, said it was too soon to say whether the group would challenge the new executive order.
“We can’t speak to the constitutionality until we have an order in front of us, but a ban is not necessary at this time given that Trump is clearly not taking other public health approaches that would help stop the spread of Covid-19 both in the country and in immigrant communities,” said the ACLU’s Andrea Flores.
“He’s avoided every immigration change that could actually make communities safer and using a moment of crisis to push racism and xenophobia and divide Americans,” Flores said. “The virus is within our own borders.”
The U.S. already has more than 700,000 confirmed cases of coronavirus.
National Security Advisor Robert O’Brien, speaking to reporters at the White House on Tuesday morning, called the suspension “a temporary issue” and said he didn’t know how long it would last.
“No one likes it,” O’Brien said. “The president didn’t want to put travel restrictions in place, he didn’t want to put immigration restrictions in place, but we have to because of this terrible virus that’s been unleashed from foreign shores.”
Original: BLOOMBERG — With assistance by Bob Van Voris, Chris Strohm, Josh Wingrove, and Erik Larson