Imagine for a moment that you’re getting ready to file your taxes. It’s an annual headache that you dread with every fiber of your being, but hey, at least it’s a standard process. Everyone must contend with the arcane tax code as written by Congress, even if just to find every possible loophole.
Except imagine that suddenly, this year is different. Imagine that the president announces that, in his estimation, taxation of “job creators” in the top 1 percent of the income distribution and corporations over a certain market capitalization is detrimental to the national interest during the pandemic and will be suspended. He gives no further explanation and makes the edict effective immediately.
Most people would rightfully balk at this wanton display of power, understanding inherently that it sidestepped congressional authority and tossed out a detailed if imperfect framework in favor of raw executive authority. It probably wouldn’t survive a court challenge, either.
Yet there’s a policy context in which such sweeping and mercurial presidential decision-making is not only common but has explicitly been codified into law by a Congress that has willingly abdicated much of its control: immigration.
Most Americans understand very little about the U.S. immigration system, with persistent myths and disinformation forming the basis for many popular notions (for example, that there’s some period of time after which people in the country can petition for residency or citizenship; this isn’t true). It is not only complex and counterintuitive, but unlike, say, the tax and health-care systems, by default the vast majority of native-born citizens never interact with it at all.
As such, the public and its legislative representatives alike have often been content to wash their hands of the matter completely, and delegate the matter to the president’s judgment. This surrender has had some political advantage for lawmakers, letting them dodge the messy business of actually legislating around a contentious issue that relatively few of their voting constituents comprehend, while accruing the benefits of loudly taking abstract positions and denouncing executive action that they themselves set the groundwork for.
Under the Obama presidency, Congress’ inability to take even a very narrow, broadly popular action—protecting young immigrants who had been brought to the country illegally—led to the implementation of Deferred Action for Childhood Arrivals (DACA), a policy that was immediately decried as practically dictatorial by a number of Republicans.
However, challenges to this program and the similar Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—which has been struck down by the Fifth Circuit court—centered not around the protections from deportation but around additional benefits like work authorization. Practically no one disputes that under the law, the president can direct how he wants enforcement to be conducted or not conducted.
Still, no administration has ever flexed its statutory supremacy quite how Trump’s has. The tax-parallel hypothetical above is no gross exaggeration. Many of the current administration’s most emblematic restrictionist policies—the so-called Muslim ban in the first days of the presidency, the attempt to block asylum claims for people who crossed the Southern border, the effort to exclude immigrants who didn’t have health insurance upon arrival, and the recent near-total suspensions of immigrant and some temporary work visas in the name of pandemic mitigation—have all been issued under the same short provision of immigration law, section 212(f) of the Immigration and Nationality Act (INA).
The statute says that the president may “suspend the entry of all aliens or any class of aliens” provided he finds that their arrival “would be detrimental to the interests of the United States.” That’s it; just like that, the president is allowed to supersede the entirety of the rest of immigration law at the stroke of a pen. Prior to the Trump administration, the clause—made law along with the rest of the original INA in 1952—had been used sparingly and in very targeted ways, for example to block people who were determined to have assisted Russia in annexing Crimea.
Yet the direction that Trump and his ethno-nationalist attack dog Stephen Miller have taken isn’t warping the law. It’s the natural endpoint of the law’s plain language, a view that has been affirmed by no less than the Supreme Court. In Trump v. Hawaii, the decision that upheld the third and final version of the original travel ban, the justices wrote that 212(f) is a “comprehensive delegation” that permits the president to decide when and whether to issue a ban, whom to ban, for how long, and under which conditions, with no real need to justify it.
That’s just one particularly broad and explicit example of presidential authority. Over the past three-and-a-half years, without changing a single word of immigration law, the administration has effectively terminated access to asylum, changed the way removal cases are adjudicated in courts nationwide, rewritten the rules for achieving permanent residency—and we’re just scratching the surface. In no other area of policy has Congress been as happy to take the back seat. But it’s time for it to wrest back the wheel. This should be a directive that cuts across party lines. It is dangerous and undemocratic for the executive to possess the ability to transform an entire section of federal law by decree.
Congress must repeal 212(f) as written (there is legislation currently pending in the House that would achieve this) and more generally reassert its power over a facet of legislation that quite literally shapes the future of the country.