Aliens subject to Trump’s latest proclamation should beware — despite court order

Last month, President Donald Trump issued a proclamation suspending the entry of immigrants who might become a financial burden to the United States healthcare system if they are allowed to live here on a permanent basis. It does not apply to immigrants who already have permanent resident status or aliens with an immigrant visa issued before the effective date of the proclamation, and it does not affect eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.

A civil rights coalition sued, and the U.S. District Court in Portland, Ore., has halted the implementation of the proclamation with a temporary restraining order (TRO).

According to the coalition, it is egregious that Trump is attempting to flout the will of Congress and squeeze through a complete overhaul of the nation’s immigration laws without anyone noticing.

But it is ridiculous to say that requiring new immigrants to be able to cover the costs of their own healthcare is a complete overhaul of the nation’s immigration laws — or that Trump is flouting the will of Congress here.

Congress wrote the statutory provision that authorizes presidents to issue such proclamations. And the Supreme Court has held that the plain language of that provision grants presidents broad discretion to suspend the entry of aliens into the United States.

The important question is this: What will happen to aliens who are excludable under the proclamation if they enter the United States while the proclamation is enjoined? That’s because the Supreme Court may very well reverse the lower court’s TRO as an abuse of discretion, as it did in Trump v. Hawaii, the “Travel Ban” case. The executive order in that case was based on the same statutory authority that this one is based on.

The aliens who enter while the TRO is in effect may ultimately be subject to deportation if the Supreme Court rules as it did in the “Travel Ban” case. The first provision in the Immigration and Nationality Act’s (INA) list of deportable alien classes makes aliens deportable if they were inadmissible when they entered the United States.

Being deported, moreover, would make their situation far worse. Section 212(a)(9) of the INA provides that aliens who have been deported have to wait five years before they can be admitted again without advance consent from the Attorney General.

Would the fact that they relied on a TRO when they entered save them from being deported? That would depend on the language of the order invalidating the TRO.

Statutory authority for the proclamation

Section 212(f) of the INA, which has been in the INA since it was enacted in 1952, includes this provision:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, 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. (Emphasis supplied).

The pertinent part of Section 215(a) of the INA reads:

Unless otherwise ordered by the President, it shall be unlawful-

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe; (Emphasis supplied). 

Trump’s reasoning

Healthcare providers and taxpayers bear substantial costs for the medical expenses incurred by people who lack health insurance and can’t pay for their healthcare. For instance, hospitals have lost more than $35 billion a year on uncompensated services for each of the last ten years.

The costs of uncompensated care are passed on to the American people in higher taxes, higher insurance premiums, and higher fees for medical services. Also, the uninsured strain federal and state government budgets by relying on publicly funded programs, which ultimately are financed by taxpayers.

We are making the problem worse by admitting thousands of immigrants as permanent residents who have not demonstrated an ability to pay for their own healthcare.

Continuing to admit immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to the interests of the United States.

Why the Supreme Court is likely to uphold the proclamation

In Trump v. Hawaii, the Supreme Court held that, section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The sole prerequisite is that the president must find that “the entry of the covered aliens would be detrimental to the interests of the United States.”

I would simply note that section 212(f) does not include a criterion for making that determination, nor does it provide a mechanism for appealing it.

The Supreme Court concluded that the “Travel Ban” order was a lawful exercise of the broad discretion that Congress granted to presidents by section 212(f) of the INA, and I expect the same result if the court renders a decision on the healthcare system order.

In any case, until the legality of the proclamation has been determined, the only safe course of action for aliens who are covered by it is to find a way to pay for health insurance.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1