New Bill Would Restrict Executive Power to Ban Legal Immigrants

In January 2017, President Trump banned nationals of seven majority Muslim countries from receiving visas or entering the United States. He followed up that ban with two subsequent bans, and as of April 10, 2019, the U.S. government is still blocking most legal admissions from five majority Muslim countries and North Korea (which received almost none anyway).

Last year, the Supreme Court upheld these actions as legal based on legislative grants of authority to the executive branch. In my comments reacting to the Supreme Court decision, I wrote:

As a matter of policy, no president should be given such broad power to determine immigration law. While the travel ban currently affects only a small share of immigrants and foreign travelers, all legal immigrants should be concerned that the president will wield this power against them next. Congress should immediately intervene to preserve its power to determine immigration policy.

A new bill would do just that. Senator Chris Coons (D-DE) and Rep. Judy Chu (D-HI) have introduced the National Origin-Based Antidiscrimination for Nonimmigrants Act, or NO BAN Act, that would explicitly protect the normal immigration system from this executive overreach. It would ban religious or nationality-based discrimination from decisions about granting visas or immigration privileges and remove president’s authority to ban immigrants not explicitly authorized to be banned by Congress except in very narrow circumstances.

To win at the Supreme Court, the president relied on Section 212(f) of the Immigration and Nationality Act, which grants the president near limitless authority to “suspend the entry of all aliens or any class of aliens” if he determines that they will be “detrimental” to the United States. The Ninth Circuit had ruled that this authority would be an unconstitutional delegation of legislative power if interpreted as giving the president authority to rewrite all immigration law. The Supreme Court disagreed, allowing the statute to stand as written.

To remedy this congressional error, the NO BAN Act would do the following:

1. It would amend section 202(a) of the Immigration and Nationality Act to explicitly ban religious discrimination in the issuance of visas. This section already bans nationality-based discrimination in the issuance of immigrant visas, but the Supreme Court ruled that the president can use his authority to ignore this provision. The bill would also clarify that this provision would guard against discrimination in decisions governing entry or other immigration decisions, including for nonimmigrants (temporary visitors, tourists, guest workers, students, etc.).
2. It would amend section 212(f) to allow the president to ban aliens only if the ban is:

• based on credible facts that entries should be restricted to address specific acts that undermine the security or public safety of the United States, human rights, democratic processes or institutions, or international stability;
• not based on religion or nationality;
• narrowly tailored to meet a compelling governmental interest;
• using the least restrictive means possible to achieve the governmental interest;
• for a specific duration; and
• based on specific evidence that the president provides; and
• apply a rebuttable presumption in favor of granting family-based and humanitarian waivers.

These provisions address all of the problems with the travel ban. It wasn’t based on any facts—credible or otherwise—and its supposed secret “evidence” was never released and may not have even existed. It was—according to the president at least—intended to restrict the entries of Muslims to the United States. It was not narrowly tailored as it banned millions of people who had never even lived in the targeted areas. It did not use the least restrictive means of achieving its supposed goal of keeping out people who couldn’t be vetted since it applied to people who the government admitted it could vet. It is no longer time-limited in any way, and it has a rebuttable presumption against granting waivers.

The innovative legislation would essentially establish a heightened strict scrutiny standard for presidential actions to restrict entry to the United States. The NO BAN Act would protect the rights of both immigrants and U.S. citizens. It would prevent U.S. citizens from being separated from their spouses and minor children who happened to be born in one of the banned countries. As I have reported before, the travel ban has already separated thousands of U.S. citizens from their spouses and minor children, a crisis that grows by the day. Congressional action is desperately needed to reverse this human tragedy.

While this issue developed out of the “travel ban,” I warned that the president would take the Supreme Court’s decision as authorizing open season against all legal immigrants, and sure enough, the president quickly expanded it to include asylum seekers already inside the United States—a policy still being held up in the courts. But it is clear that the president—no president—should have the power to unilaterally restrict Americans’ rights to associate, contract, and trade with people born in other countries.