In a tweet late Monday, April 20, 2020, President Trump said he will issue an executive order temporarily suspending immigration “in light of the attack from the Invisible Enemy” and the “need to protect the jobs of our GREAT American Citizens.” The White House did not provide any immediate clarification, including when an executive order would be signed.
Presidents enjoy wide latitude when it comes to unilaterally setting immigration policy, including restrictions to entry of aliens or classes of aliens. Section 212(f) of the Immigration & Nationality Act provides the president with the authority to “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,” whenever the president finds that such entry would be “detrimental to the interests of the United States,” for “such period as he shall deem necessary.” 8 U.S.C. §1182(f).
Section 212(f), part of the Act since 1952, has been invoked some 42 times since 1981, but never so broadly as suggested by Trump’s late night tweet. While the jurisprudence on section 212(f) has been sparse, the Supreme Court has sanctioned its use. In Sale v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993), the Supreme Court held that the interdiction of persons fleeing Haiti outside US territorial waters and returning them to their home country without allowing them to raise claims for asylum or withholding of removal did not violate the INA or the United Nations Convention Relating to the Status of Refugees. The US practice had been established by Executive Order 12807, which was issued, in part, under the authority of Section 212(f) and “suspend[ed] the entry of aliens coming by sea to the United States without necessary documentation.”
Unlike the administration’s Travel Ban 4.0, which added six countries in January 2020, and the travel restrictions imposed on foreign travelers since the COVID-19 outbreak, a wholesale ban on immigration would have no limitation by country or region. If the president issues a blanket suspension on immigration, it will represent the most dramatic exercise in history of the president’s authority to prohibit entry of aliens to the United States.
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