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If you feel like you saw a version of this movie in 2017, you're not imagining things. Trump/McConnell have installed lots of right-wing judicial loyalists who may be eager to give their patrons a green light, but Trump's immigration ban is legally dubious. 1/ https://twitter.com/WHPublicPool/status/1253093707944951809
As a preliminary matter, let's be clear that this order does precisely what Trump promised: "suspend immigration." His legal flunkies might not have been ready to go w/the order right when he posted this tweet, but it does exactly what Trump promised. Don't pretend otherwise. /2
Don't make the same mistakes made with the #MuslimBan by echoing the Trump presidency's talking points, which minimize the order for some audiences—to make it sound narrow and respectable—while playing up its true implications for other audiences. 3/ https://twitter.com/kalhan/status/1252785559505788928
The headline here is that the Trump presidency has imposed a sweeping immigration ban by executive decree—and in a manner that runs roughshod over the immigration statute. Not that it might be a mere "pause," not that it has "exemptions," not that it's "short of a full ban." 4/
To describe this order as "only" applying to green cards (i.e., permanent resident visas) is particularly galling. Green cards are numerically fewer overall than temporary nonimmigrant visas. But they're the *core* of the immigration system—not some insignificant sideshow. 5/
On the order itself—very important to emphasize that Trump's lawyers do *not* justify this order on public health grounds—rather, the stated rationales are (1) purported effects of immigration on labor markets and (2) as a throwaway, supposed State Dep't resource constraints 6/
For good measure, Trump's lawyers throw in some bad faith concern trolling about the purported effects of immigration on "historically disadvantaged groups"—groups to whom Trump and his Republican fellow travelers have been openly hostile throughout their entire presidency. 7/
The economic rationale for Trump's order is remarkably weak, as explained in this Wall Street Journal editorial 8/ https://twitter.com/priscialva/status/1252923812452143105
But note that however weak, this focus on supposed labor market effects makes this order different in kind from Trump's COVID-related immigration orders, which limited noncitizen entry from China, Iran, and Europe and via land ports of entry between Canada and Mexico. 9/
Those orders were rationalized *exclusively* on public health grounds—though it must also be emphasized that Trump's propaganda has wildly mischaracterized the public health value of those orders, as @nataliabbogdan @meghan_benton @ekztarf explain: https://www.migrationpolicy.org/news/coronavirus-not-a-migration-problem 10/
This order is also different from the Trump presidency's order enabling summary expulsion of people arriving at the border w/o valid documents—which, as Lucas Guttentag explains, "cannot be reconciled with our history, our laws, the Constitution" https://www.justsecurity.org/69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied-minors/ 11/
But do not be reassured by this order's different rationale. It might not feel like it, but at least the health crisis has conceptually identifiable end points—the same end points that officials (hopefully) are looking for when assessing when and how to reopen the economy. 12/
By contrast, when will the supposed "impact of foreign workers on the United States labor market" to which Trump's legal flunkies point in this order have sufficiently subsided for the order to be terminated? And based on what criteria? 13/
We already know the Trump presidency's own answer to that question, because he & his anti-immigration allies answered it long before the pandemic provided an excuse to answer it again—NEVER. The order's pretextual rationale is a xenophobic evergreen, not a response to COVID. 14/
Compare today's order, for example, with Trump's three Pinocchio 
statement about immigration from 2017. They cover much of the same ground. Could Trump have lawfully banned immigration by decree then on that same basis? 15/
https://www.washingtonpost.com/news/fact-checker/wp/2017/08/10/president-trumps-claim-that-low-skilled-immigration-placed-substantial-pressure-on-american-workers/
statement about immigration from 2017. They cover much of the same ground. Could Trump have lawfully banned immigration by decree then on that same basis? 15/https://www.washingtonpost.com/news/fact-checker/wp/2017/08/10/president-trumps-claim-that-low-skilled-immigration-placed-substantial-pressure-on-american-workers/
Unfortunately for Trump and his fellow travelers, Congress has made different judgments about immigration priorities and the labor market. He is not legally authorized to rewrite immigration law simply because he disagrees w/the policy choices Congress has enacted into law. 16/
Take employment-based visa—roughly 5% of immigrants arriving from outside the US. For many of them, Congress requires labor certification, to balance the interests of employers seeking immigrant workers they want to hire with the risks of negative labor market effects. 17/
Trump's immigration ban would write these provisions out of the statute altogether. Instead of respecting processes Congress established to address labor market concerns, the order concludes that certification isn't good enough and imposes Trump's own priorities by fiat. 18/
That fundamentally reflects a policy disagreement with the rules that Congress has enacted into law, and little more than that. There's nothing COVID-specific about the order's assertion that labor certification "cannot adequately capture the status of the labor market today" 19/
If Trump and his fellow xenophobes don't like labor certification, they should get Congress to enact different rules. Trump may claim he has "total authority," but he doesn't have authority to supersede and rewrite immigration law just because he doesn't like it. 20/
Trump's order also bans entry under the EB-1 employment category, for people of "extraordinary ability." But Congress has decided that balancing labor market concerns using labor certification isn't even required for individuals in this category—b/c they're "extraordinary." 21/
Maybe Trump believes that EB-1 immigrants aren't "extraordinary," and should be banned because they might hurt the labor market. But Congress disagreed—and that disagreement is written into law. Trump doesn't have authority to rewrite the law to impose different judgments. 22/
As an aside: Melania Trump reportedly received her green card as an EB-1. Were she seeking immigrant admission today, would Trump conclude that she should not be admitted as an immigrant? 23/ https://www.nytimes.com/2018/03/04/us/melania-trump-einstein-visa.html
(Aside to the aside: there's a fun, entertaining episode of @thegoodfight, S02E12, touching upon Melania Trump's EB-1 visa and a host of other immigration issues—sanctuary cities, courthouse arrests, and more. So glad that Season 4 is finally here...) 24/ https://www.imdb.com/title/tt6855930/
There's one pretty glaring exemption from Trump's categorical ban on employment-based immigrant visas in this order: individuals seeking to enter under the EB-5 Immigrant Investor Program. 25/
Who benefits from that exemption? Rich cronies of the Trump and Kushner families, of course 
26/ https://www.washingtonpost.com/world/in-a-beijing-ballroom-kushner-family-flogs-500000-investor-visa-to-wealthy-chinese/2017/05/06/cf711e53-eb49-4f9a-8dea-3cd836fcf287_story.html
26/ https://www.washingtonpost.com/world/in-a-beijing-ballroom-kushner-family-flogs-500000-investor-visa-to-wealthy-chinese/2017/05/06/cf711e53-eb49-4f9a-8dea-3cd836fcf287_story.html
So much for employment-based immigrant visas. What about family-based immigration? Relatives of US citizens and legal immigrants constitute two-thirds of all immigrants, and the overwhelming percentage of immigrants admitted from outside the United States 27/
This is not some quirky coincidence—it's the product of conscious congressional choice. As @pwolgin writes, family unity is the "bedrock" of US immigration law. 28/ https://www.americanprogress.org/issues/immigration/news/2018/02/12/446402/family-reunification-bedrock-u-s-immigration-policy/
The family immigration categories crafted by Congress include:
- Immediate relatives of US citizens (spouses and children, but also parents)
- Adult sons/daughters and siblings of US citizens
- Spouses, children, and adult sons/daughters of permanent residents. 29/
- Immediate relatives of US citizens (spouses and children, but also parents)
- Adult sons/daughters and siblings of US citizens
- Spouses, children, and adult sons/daughters of permanent residents. 29/
Restrictionists hate immigration law's prioritization of family relationships with a passion. Their agenda—also reflected in Trump's legislative agenda—seeks to curtail and limit family-based immigration to "nuclear" family members. 30/
In place of existing law's family categories, restrictionists have long urged what they call "merit-based" immigration. It's a terribly misleading phrase, but the key point here: their proposals require legislation, because existing law creates other priorities. 31/
But...surprise! The immigration ban's family-based exemptions only cover spouses and under-21 kids of US citizens—blocking immigration under the other family categories created by Congress. Conveniently the same categories that restrictionists want removed from existing law. 32/
What's is the labor market rationale for allowing spouses and under-21 kids of US citizens to enter as immigrants but banning all other family-based immigrants from coming? The order's cursory preamble, with its weak economic rationale, doesn't bother trying to explain. 33/
And finally, the diversity visa program. Congress has directed by statute that 50,000 visas be made available per year to qualifying individuals from countries whose immigrant admissions were low the previous year, without regard to family and employment ties. 34/
Trump hates the diversity visa program—and routinely lies about it, as @jaketapper discusses in this helpful fact check. 35/
Conveniently, Trump's immigration ban blocks virtually all diversity-based immigrants from entering, since almost all of them enter from outside the United States. 36/
But again, the order's use of alleged labor market effects to block diversity visas—which is only implicit; it doesn't make specific findings about the economic impact of any immigration category—is substituting his own judgment about immigration policy for that of Congress. 37/
Ultimately, the Trump presidency's immigration ban is a fairly transparent attempt to impose the restrictionist vision of immigration law and policy—different categories, lower overall numbers—by executive decree, rather than legislation —> 38/ https://twitter.com/ReichlinMelnick/status/1253108647347081217
Again, it's crucial to reiterate that the order's rationale is not tied to the public health crisis. When will Stephen Miller decide that the "toll on the US economy" has receded enough for the ban to be lifted? Not when the public health crisis is over; quite likely never. 39/
In the restrictionist view of the world, the supposed harms that Trump's order seeks to address long predated the current health crisis—and indeed even existed when unemployment was at record lows—and therefore will continue to exist long after the health crisis is over. 40/
It's a classic emergency powers problem. If Trump's ban were validated on this pretextual, open-ended labor market rationale—and it's not clear that federal judges *would* validate it—how will we know when the underlying "emergency" triggering condition no longer exists? 41/
When, for that matter, would it *not* be permissible for the presidency to override Congress's legislative judgments about immigration priorities and categorically ban immigration by decree? If this rationale is deemed acceptable, the answer might be never. 42/
The Supreme Court's decision in Trump v. Hawaii (the case greenlighting Trump's #MuslimBan) interprets INA § 212(f), the provision this order relies upon, exceptionally broadly. I'm sure Trump's legal minions think it gives them a green light for this immigration ban, too. 43/
To that extent, Chief Justice John Roberts and the Court's Republican-aligned justices may bear some responsibility for emboldening the Trump presidency to issue this sweeping decree. But it's not at all clear that they'd go along with this order. 43/
As Roberts noted: "We may assume that § [212(f)] does not allow the President to expressly override particular provisions of the INA." That is precisely what this order does. The conflict w/"Congress's considered policy judgments" is even more direct than w/the #MuslimBan. 44/
![As Roberts noted: "We may assume that § [212(f)] does not allow the President to expressly override particular provisions of the INA." That is precisely what this order does. The conflict w/"Congress's considered policy judgments" is even more direct than w/the #MuslimBan. 44/](https://pbs.twimg.com/media/EWTHqySUEAMUM-F.png "As Roberts noted: \"We may assume that § [212(f)] does not allow the President to expressly override particular provisions of the INA.\" That is precisely what this order does. The conflict w/\"Congress's considered policy judgments\" is even more direct than w/the #MuslimBan. 44/")
One more thought. Why did Trump issue this order now? I don't recall hearing proposals along these lines until Jeff Sessions urged an immigration ban last week. Sessions himself certainly thinks he deserves credit for Trump's order: https://www.newsweek.com/jeff-sessions-urged-trump-admin-immediately-halt-immigration-1499168 45/
But Keebler Chamcha did not newly propose to ban immigration b/c of the pandemic—he's been trying to do so for most of his career, using any pretext available. I can't help but recall his 2015 nostalgia for the eugenics-fueled Immigration Act of 1924: https://slate.com/news-and-politics/2017/09/jeff-sessions-praise-of-1924-eugenics-immigration-law-remains-insane.html 46/
It's worth noting that Congress enacted the 1924 law to make permanent the immigration restrictions first enacted—ostensibly on a emergency, temporary, one-year basis—in 1921. As historian John Higham has written, those temporary measures proved extremely consequential 47/
Note further Higham's observation that "[o]ne may doubt that a grave emergency existed before the passage of the new law; immigration was already slackening in the early months of 1921, reflecting somewhat tardily the business decline." 48/
![Note further Higham's observation that "[o]ne may doubt that a grave emergency existed before the passage of the new law; immigration was already slackening in the early months of 1921, reflecting somewhat tardily the business decline." 48/](https://pbs.twimg.com/media/EWTI3J1UcAANGZf.png "Note further Higham's observation that \"[o]ne may doubt that a grave emergency existed before the passage of the new law; immigration was already slackening in the early months of 1921, reflecting somewhat tardily the business decline.\" 48/")
![Note further Higham's observation that "[o]ne may doubt that a grave emergency existed before the passage of the new law; immigration was already slackening in the early months of 1921, reflecting somewhat tardily the business decline." 48/](https://pbs.twimg.com/media/EWTI4psUEAM4tkn.png "Note further Higham's observation that \"[o]ne may doubt that a grave emergency existed before the passage of the new law; immigration was already slackening in the early months of 1921, reflecting somewhat tardily the business decline.\" 48/")
The 1924 law's framework remained in place until 1965. The circumstances are different, but beware of immigration restrictions that purport to be temporary, emergency measures. 49/
The #MuslimBan itself, after all, was rationalized as temporary and time-limited, both publicly and in court. Years later, it remains in place—and the Trump presidency has never given any indication that it genuinely intends those restrictions to be anything but permanent. 50/
There's little basis to presume that the Trump presidency intends in good faith for this decree to be temporary either. It's a power grab, under the pretextual cover of a crisis, that directly conflicts w/landmark immigration laws that Congress enacted decades ago. 51/
The order itself makes clear that the immigration ban "may be continued as necessary" after the initial 60 day period has expired—and even telegraphs that "additional measures" may be taken to restrict temporary nonimmigrant admissions. 52/
The Trump presidency and its anti-immigration allies have been trying to overhaul and curtail legal immigration for years. This order—and the intended longevity of these measures—must be interpreted and assessed with that basic fact front and center. 53/ https://www.politico.com/story/2019/08/02/stephen-miller-green-card-immigration-1630406
