Donald Trump, with Director of the National Economic Council Larry Kudlow (L), holds a press ... [+]
Donald Trump’s recent effusive remarks on jobs and the U.S. economy contradict the administration’s legal and policy rationale for imposing new immigration restrictions on H-1B visa holders, international students and others, note attorneys and analysts.
“This is outstanding, what’s happened today,” said President Trump in remarks on June 5, 2020, after the release of the latest jobs report. “Now, they thought the number would be a loss of 9 million jobs, and it was a gain of almost 3 million jobs. . . . I think it was incredible in a couple of ways. Number one, the numbers are great, and this leads us on to a long period of growth. We’ll have the greatest – we’ll go back to having the greatest economy anywhere in the world. Nothing close.” (Emphasis added.)
Trump predicted the economy would continue to improve. “And I think we’re going to have a very good upcoming few months,” he said. “I think you’re going to have a very good August, a very good July, but a spectacular – maybe spectacular September, but a spectacular October, November, December. And next year is going to be one of the best years we’ve ever had, economically. And if you look at the numbers, they bear it out.” Chief economic adviser Larry Kudlow made similar statements. And in June 10, 2020, Senate testimony, Treasury Secretary Steven T. Mnuchin said, “We remain confident that the overall economy will continue to improve dramatically in the third and fourth quarters.” (Note: article was updated to reflect Mnuchin testimony.)
The president’s remarks, including about “spectacular” economic months and “one of the best years we’ve ever had,” present a significant legal and policy contradiction: Why does the Trump administration need to use executive action to override laws passed by Congress and enact emergency immigration measures if the president has said on the record that the U.S. economy is booming, will grow rapidly and is roaring back with jobs?
“If the prognosis for the economy is so good, then there is no national emergency,” said Jonathan Wasden, a partner with Wasden Banias, LLC, who argued successfully against regulatory overreach by the Trump administration in ITServe Alliance v. L. Francis Cissna.
Possible emergency measures include using the president’s authority under Section 212(f) of the Immigration and Nationality to block entirely, suspend or impose more stringent conditions, including new fees or salary requirements, on the entry of H-1B and L-1 (intracompany transferees) visa holders. The administration also may suspend, eliminate or restrict through regulation Optional Practical Training (OPT) and the ability of H-1B spouses to receive employment authorization documents. OPT allows international students to work in the United States, usually after graduation, and is considered essential by employers and U.S. universities to attract and retain foreign-born talent.
The administration may impose new rules on foreign nationals inside the country with interim final rules, which allow a regulation to take effect almost immediately. Section 212(f) can be used to block “entry,” as with the April 22, 2020, presidential proclamation that suspended the entry of most new immigrants. (H-1B visa holders and international students are temporary visa holders, not immigrants.) The Trump administration has used Section 212(f) more than any other president, and in ways critics say go beyond the statute. (See here.)
“Section 212(f) is all about emergency powers,” said Wasden in an interview. “If the outlook for the future of the economy is so positive and robust, as stated in the president’s remarks, then there is no emergency on the horizon that we need to be protected from by using the powers under 212(f).”
William Stock of Klasko Immigration Law Partners also believes the administration may be overplaying its hand in the use of Section 212(f). “One question a court will have to answer in current challenges to the April 22, 2020, proclamation limiting the immigration of family members, and to any expansion to temporary visa holders, is whether delegating the president the power to nullify the remainder of the Immigration and Nationality Act is constitutional,” said Stock in an interview. “In reviewing the third version of the president’s first travel ban, the Supreme Court took pains to emphasize the extreme deference to presidential determinations of potential ‘detrimental’ entry that were embodied in Section 212(f).”
Stock and George Mason University law professor Ilya Somin believe judges need to address whether in giving the president the power to rewrite immigration law unilaterally Congress violated the nondelegation doctrine, which limits how much Congress can delegate its powers to the executive. “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,” said Somin.
Wasden said the president’s recent remarks on the economy also make it questionable for the administration to argue in court it needs to impose new H-1B or other rules as interim final rules. “An interim final rule on H-1B, including a change to the definition of a specialty occupation, would be hard to prove is an emergency need, which is the reason a rule would be interim final and not go through the normal notice-and-comment rulemaking process,” said Wasden. “The definition of an H-1B specialty occupation has been the same for 30 years. Why all of a sudden does it need to be changed, particularly after the president declared jobs are coming back and each month will be better than the next?”
In his most colorful statement on June 5, 2020, Donald Trump said the economic recovery would not be in the shape of a V. “This is better than a ‘V’; this is a rocket ship.” Trump used that imagery while perhaps thinking of the recent launch of the SpaceX rocketship, which he attended. Elon Musk, who founded SpaceX, came to America as an international student and later obtained a work visa. Would he and other innovators survive today the gauntlet of orders, rules and proclamations the Trump administration is unleashing against the foreign-born?
