The election of Joe Biden to the presidency has those who dreaded executive directives over the past four years once again looking forward to them. Those who cheered President Obama as he used his pen to protect hundreds of thousands of undocumented children, and then watched with horror as President Trump wielded his pen to ban Muslims, are now eagerly anticipating Biden’s use of executive authority to reverse Trump’s policies. But those who wish to preserve the United States as a magnet for the world’s talent in the long term would do well to cheer Biden’s short-term efforts to reverse Trump’s policies while, at the same time, calling for limits on the executive’s power over immigration.
Within days of Donald Trump taking office, the term “executive order” quickly entered common parlance as it became synonymous with the use of Islam as a justification for banning individuals from entering the United States. Trump was not the first president to use executive action to accomplish his immigration agenda. However, prior to the Obama administration, these exercises of executive power rarely impacted the lives of more than 1 million immigrants in the same term as the president who exercised them. One notable exception is President George H.W. Bush’s use of executive authority in 1990 to protect up to 1.5 million people (an estimated 40 percent of the undocumented population in the United States at the time) through the “Family Fairness” program.
The Obama administration dramatically increased the scale of the executive’s impact on immigrants. Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) programs, announced in 2012 and 2014, respectively, was consequential for an estimated 5 million undocumented individuals, or over one-third of the undocumented population estimated to live in the United States at the time.
Since entering office, Trump has continued this trend. Trump’s travel bans applied to an estimated 183 million people within the specified countries, not to mention the millions of nationals of those countries who resided outside their borders. Indeed, State Department data shows that Trump banned more people in his first year in office pursuant to Section 212(f) of the Immigration and Nationality Act (which grants the president discretion to limit who can come into the United States) than Obama did in a relatively active eight years of utilizing the provision.
But, it turned out, Trump’s travel bans would only be the tip of the iceberg. It is bewildering to think that, as dramatic as Trump’s transformation of U.S. immigration policy has been -- from expelling asylum seekers to Mexico, separating infants from their parents, and cancelling Temporary Protected Status for 300,000 individuals, to reinterpreting the public charge rule (which, if applied to U.S. citizens, would impact nearly half the population) and making the H-1B visa elusive to all but those who earn the highest salaries in their respective occupations -- he has accomplished it unilaterally, without any need for Congress’s involvement.
If Trump has followed the trend of increasing the number of immigrants affected by executive power, he has also dramatically departed from past precedent by the extent to which he has used his authority to transform immigration policy. By pushing the limits of the law, the Trump administration has illuminated its contours and boundaries, thereby providing, in some cases, concrete answers where only speculation existed previously. For example, we knew before Trump that Section 212(f) of the Immigration and Nationality Act (INA) explicitly states that the president has the power to, by proclamation, “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 appropriate” upon determining that the entry of such aliens “would be detrimental to the interests of the United States.” But could the president use this delegation of power to target individuals based solely on their nationality – and, in President Trump’s own words, their identity as Muslims? It turns out the answer is yes, according to the Supreme Court, “so long as [the policy] can reasonably be understood to result from a justification independent of unconstitutional grounds.”
In the wake of the recent election, some find hope in the idea that one president’s executive action can be undone by the next. This may be true in certain cases, particularly those in which legal authority is aligned with practicalities on the ground. For example, President-elect Biden will almost certainly have the legal authority to rescind Trump’s travel bans, to implement a temporary freeze on deportations and exercise discretion to focus deportation efforts on those who present a threat to public safety, and to institute a task force focused on reuniting separated families.
However, there is an inertia behind even some of the most haphazard executive directives -- parents who disappear after their children are taken from their arms, refugee camps that grow to the tens of thousands as asylum seekers are forced to wait in Mexico while their asylum cases are adjudicated. The solution to these crises is not only legal, but also practical. No amount of legal authority can reunite families or address a refugee crisis without time, creativity, and on-the-ground resources and personnel. Even for a president whose attention is not drawn to the supremely urgent Covid-19 pandemic, reversing these harms would be a formidable challenge.
Additionally, even if President-elect Biden were to immediately act to address these policies, they may very well have already shifted the opinions of the public, the courts, and the legislature. The longer such policies are in place, the more difficult it becomes to unwind them. Unilateral executive action has deep and lasting consequences, in spite of who next sits in the Oval Office.
Time is truly of the essence when it comes to the need for Biden to unwind Trump’s damaging immigration policies. But the long-term negative consequences of an executive branch that reverses immigration policy with each new administration should not be ignored. The practice erodes trust and confidence in the immigration system and sows fear and uncertainty among those considering whether to bring their families, their businesses, and their lives to the United States. This should concern every American, regardless of ideology.
As the leading tech companies and business organizations in the United States -- including Amazon, Apple, and Microsoft, among others -- stated in their amicus brief to the Supreme Court in response to Trump’s June 2020 proclamation suspending H-1B, H-2B, and L-1 visas: “This is straightforward: Diverting skilled workers overseas deprives the United States of critical talent needed to sustain growth and drive innovation…. If these highly specialized workers cannot come to the United States, employers will be forced to employ them overseas—often along with other supporting employees and resources—or else give up that function altogether, harming their business.”
The amici’s arguments suggest that policies hostile to immigration are sufficient but not necessary to deter those who promise to create jobs domestically. The mere existence of an uncertain and unstable immigration landscape would likely accomplish that feat: “It would be a mistake to view the [June 2020] Proclamation’s impact as limited to the duration of the COVID-19 crisis. While the suspension forces companies to make decisions in the short-term … these decisions will have irreversible long-term effects. [N]ew H-1B hires or intracompany L-1 transfers that would have driven growth in the United States will instead go elsewhere, and once those decisions are made—and the corresponding hires, training, team building, and business plans are implemented in another country—there is often no turning back. The U.S. economy, and U.S. workers and employers, will suffer permanent harm, even if the President does not seek to extend the suspension beyond this year.” To put it simply, the cost of an unstable immigration policy landscape is that the United States compromises its status as a magnet for the world’s most driven and talented individuals.
Therefore, even as the Biden administration implements reversals to Trump’s policies in the short term, it should have an eye toward increasing stability in the long term. One proposal for how Biden might do so is to limit his power over immigration policy and to call for Congress to exercise its own.
For example, now is the time to call for limitations to be placed on the expansive power provided to the president under INA Section 212(f), which empowers the president to limit who can enter the United States. This power might be confined to specific circumstances (such as when specified individuals present a threat to national security or public safety) that are supported by evidence. Any determination to ban individuals from the United States would expire after a finite period if not renewed.
Additionally, Biden can limit the executive’s power over immigration by working to reduce the size of the population whose legal status is in limbo and that is, consequently, particularly vulnerable to the executive branch’s enforcement authority. He might push for a Covid-19 economic recovery package that, for example, provides a path to citizenship for those undocumented individuals who have been on the front lines in response to the pandemic.
Would Congress be receptive? It might be, at a time when public support for immigration is at its highest point in decades. And Congress should be receptive if it appreciates that introducing stability into the U.S. immigration system is not only right, but is also smart as we look to rebuild our economy and our status as a land of opportunity.
