Federal Judge Hears Arguments against Trump’s H-1B Visa Ban

San Francisco: The future of U.S. immigration policy and the fate of thousands of H-1B, L-1 and other visa holders rests in the hands of a federal judge. Arguments were heard on a preliminary injunction filed by businesses against the Trump administration’s June 2020 proclamation to suspend the entry of foreign nationals on H-1B, L-1, H-2B and (most) J-1 temporary visas. The critical question before District Judge Jeffrey S. White: Does the president possess essentially unlimited power to override immigration laws passed by Congress and block any visa holder from entering the United States?

At the September 11, 2020, hearing in the U.S. District Court for the Northern District of California, Paul Hughes of McDermott Will & Emery, counsel for the plaintiffs, framed the issues before the court as follows: If Congress delegated unlimited authority to the president under Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), the law is unconstitutional as an unlawful delegation of authority by Congress. If the authority is not unlimited, then there are limits to the president’s authority based on rational standards, the Supreme Court’s decision in Trump v. Hawaii and the 9th Circuit decision in Doe v. Trump.

“I think the principle is there ultimately has to be a reasonable connection between the stated problem and the action that is ultimately taken,” said Hughes. The plaintiffs in the case are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax.

The plaintiffs focused on the Trump administration’s claim the proclamation is a reasonable use of the president’s authority under Section 212(f) of the Immigration and Nationality Act (INA). “The Proclamation exceeds the President’s powers under Section 212(f) because it directly conflicts with congressional judgments embedded in the INA: Congress specified that certain guest worker programs are in the national interest, but, for more than six months, the Proclamation nullifies those statutes,” according to the plaintiffs’ reply brief in support of the motion for preliminary injunction. “And, in so doing, the Proclamation fails to make a reasonable finding, which the Ninth Circuit holds is requisite for the use of Section 212(f) to address a domestic problem. These limitations are essential to ensure that Section 212(f) effects a bounded – and thus constitutional – delegation of authority to the Executive.”

The plaintiffs’ focus may have improved the chances for the judge to grant a preliminary injunction. “The plaintiffs did a good job identifying one of the contradictions in the government’s defense,” said Greg Siskind of Siskind Susser in an interview. “The government argues that Section 212(f) gives the president extremely broad power to ban people. But if you buy that argument and that Congress’ immigration framework can be ignored, then this is an unconstitutional delegation of the Constitution’s requirement that Congress regulate immigration.” — Forbes