Immigration Ban under New Attack 

IRLI shows Trump used power as Congress intended 

WASHINGTON—Yesterday, in the federal district court for the District of Columbia, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief defending President Trump’s suspension of the issuance of green cards abroad. Would-be immigrants and their U.S. relatives have sued over the ban, claiming, among other things, that it denies them the equal protection of the law guaranteed by the Fifth Amendment to the Constitution.  

In showing that the ban has a rational basis, and therefore should be upheld against this claim under the standard the Supreme Court used when it upheld Trump’s travel order, IRLI brought to the court’s attention crucial legislative history. 

Trump acted under a provision of the Immigration and Nationality Act giving him the power to suspend the entry of any class of aliens, or of all aliens, into the country if he deems their entry harmful to the national interest. It turns out that this broad language was no accident. When Congress was debating this provision in 1952, statements by Representatives both for and against it make very clear that all recognized the sweeping nature of the power under consideration.  

Even more strikingly, Congressman Walter of Pennsylvania, in defending the provision against a proposed amendment that would have limited it to times or war or national emergency, noted that the President’s power to exclude “all aliens” might be necessary at a time of “great unemployment.” Thus, Trump’s stated objective in issuing the ban—to safeguard jobs for American workers during a time of high unemployment—not only is a plausible reason for the ban, but was specifically contemplated as a legitimate reason by Congress. 

“The current situation shows how wise Congress was in 1952 to give the President this power to exclude aliens in the national interest,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Congress now is deadlocked, and never would have acted to protect Americans in this way from the pandemic and the economic devastation that has come from it. So far, no court has limited this vital foreign-affairs power of the President, and we hope the court upholds it again in this case.” 

The case is Nguyen v. Department of Homeland Security, 1:20-cv-00718 (D.D.C.).