On Tuesday, President Biden issued a travel ban for asylum seekers:
In accordance with Section 3 of this Proclamation, entry of any non-citizens into the United States through the southern border is hereby suspended and restricted. This suspension and entry restriction will take effect on June 5, 2024 at 12:01 noon Eastern Daylight Time.
The order invokes INA Section 212(f) and, for nonimmigrant attorneys, 8 USC § 1182(f). It states in part:
Whenever the President finds that the entry of any alien or class of aliens into the United States will be detrimental to the interests of the United States, he may, by proclamation and for such time as he deems necessary, suspend the admission of all aliens or classes of aliens as immigrants or non-immigrant, or impose any restrictions on the entry of aliens that he deems appropriate.
President Trump has invoked the same section in every travel ban. Between 2017 and 2018, I wrote more about Section 212(f) than I can remember. exist Trump v. HawaiiChief Justice Roberts described the provision in general terms:
By its terms, every provision of Section 1182(f) embodies respect for the President. It entrusts the President with deciding whether and when to suspend entry (“[w]He never [he] determines that the entry of an alien “would be detrimental to” the national interest); suspends his or her entry (“to all aliens or to any class of aliens”); for how long (“for such period as he considers necessary”); and therefore, we previously observed It’s no surprise that Section 1182(f) gives the president power. “Plenty of power” Entry restrictions are in place in addition to those enumerated elsewhere in the INA. Sale, 509 US at 187 (finding “clearly clear” that the President can “establish a naval blockade” to prevent illegal immigration into the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (Describes the “general proclamation authority” in Section 1182(f) that enables the President to supplement other grounds of inadmissibility in the INA).
follow Trump v. Hawaii, some called for the repeal of Section 212(f). I doubt even a Democratic president would remove such a powerful arsenal from his executive power toolbox. (There’s a reason Congress hasn’t enacted any post-Trump executive branch reforms.) Nearly four years into the Biden presidency, Section 212(f) remains intact.
The policy went into effect about thirty minutes ago. The Northern District of California has not yet enacted this policy, but it will. Judge Tigar may have a macro for this type of TRO. I am confident that the Department of Justice will pass a bill to defend this policy. But does the Biden Justice Department really want to win here? Wouldn’t the best-case scenario be for Biden to receive political credit for what he did? something On the border and then blaming the courts for not allowing him to do so because his supporters will be content with asylum seeker scans continuing to enter the country? I wonder if Justice Department lawyers will refuse to sign off on these briefs, as some did with the Trump order.
