Just like his original travel ban a week into his presidency and his Europe ban last month, Donald Trump’s tweet Monday night saying he would “temporarily suspend immigration into the United States” left immigrants, advocates, reporters, attorneys and even government officials scrambling to figure out what exactly he meant.
The executive order he referenced is reportedly still being drafted, but Trump said in a press conference Tuesday night that it would suspend all immigrant visas for an extendable period of 60 days. Earlier reports stipulated that various classes of work visas would be included, or excluded; fundamentally we won’t know what he’s talking about until we see the text.
What we do know is that the effort is the culmination of a years-long project by White House adviser Stephen Miller to mission-creep the administration’s restrictionist policymaking from one ostensibly focused narrowly on national security to a diffuse economic argument. In addition to fighting the pandemic, Trump’s tweet listed the “need to protect the jobs of our GREAT American Citizens,” as a reason for signing the order, something he stressed again at his coronavirus briefing Tuesday evening.
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The point was driven home by new White House press secretary Kayleigh McEnany, who said in a statement that “[a]t a time when Americans are looking to get back to work, action is necessary.” A draft of the executive order reportedly also targeted workers already in the United States; for example, H-1B technology workers could be forced to recertify that they don’t compete with American workers.
This is not new rhetorical ground, obviously. Trump has long espoused the faulty logic that immigrants take jobs away from American workers. The difference is, after years of circling the issue, this hazy talking point is set to become official U.S. policy, and prior efforts at pushing the envelope in the courts have guaranteed it a decent chance of surviving a challenge.
In all likelihood, the order will rely on section 1182(f) of Title 8 of the U.S. Code, the same expansive statute under which the president has issued all his other general travel restrictions as well as the since-blocked attempt to require that all immigrants have health insurance lined up before arriving in the country. The law allows presidents to find that any group of “aliens” are detrimental to U.S. interests and block their entry into the country.
In a bit more than three years, Trump—who ran on the claim that people from specific countries brought crime and chaos to America—has gone from an executive order asserting people from other counties presented a clear and present danger of terrorism to one asserting that sick immigrants from other countries threatened public health to the natural endpoint, one asserting that all immigrants are a threat to American jobs and stability writ large.
Like almost every Trump administration immigration initiative, this new order will surely face a legal challenge before the ink has dried on his signature. Yet Congress and the courts have set the stage for this moment, allowing the executive such raw power on immigration that this longtime goal, a white whale since Miller’s high school days, seems tantalizingly within reach.
In upholding the third version of the travel ban, in Trump v. Hawaii, Supreme Court Chief Justice John Roberts wrote that the the law “entrusts to the President the decisions whether and when to suspend entry (‘[w]henever [he] finds that the entry’ of aliens ‘would be detrimental’ to the national interest); whose entry to suspend (‘all aliens or any class of aliens’); for how long (‘for such period as he shall deem necessary’); and on what conditions (‘any restrictions he may deem to be appropriate’). It is therefore unsurprising that we have previously observed that §1182(f) vests the President with ‘ample power’ to impose entry restrictions.”
“It’s breathtakingly broad,” David Kubat, a Minnesota-based immigration attorney, told me. “Take the same travel ban and simply replace the purpose with (mitigate the unemployment in the U.S.) and the applicability to (the whole world), and well, I think it could stand under this decision.”
Already, the president’s allies in Congress are pushing the simple, catchy argument that the skyrocketing unemployment rate is a reason to terminate immigration altogether. “We have >22 million illegals & >22 million unemployed. Somewhere in this equation there must be a solution,” tweeted white nationalist Rep. Steve King (R-IA), either not understanding or not caring about the fact that any possible order would target documented immigrants or temporary non-immigrants.
Currently, immigration to the U.S. is largely suspended anyway, amid coronavirus-related travel restrictions, border closures, and consulates ceasing visa operations abroad. But this is about what happens next. There’s been a lot of talk lately about returning to “normal,” about what will take place when the vaccine is discovered, the virus relents, and we all start taking the first tentative steps to a life we were forced to abandon.
It’s true that at some point millions of U.S. citizen and resident workers will be returning to the workforce at once, and it will be easy to buy into the notion that their gain must entail immigrants’ loss, that the economy is zero-sum and that the president should be vested with the option to shut immigration off at will. Some may even face a political cost for questioning that, even if it runs counter to the evidence, and to the country’s legacy.
It is always at such moments of crisis that guileful leaders push the easy, heavy-handed solutions that they’ve longed for. Miller has been waiting decades for such a crisis, one that would offer a chance to finally and definitively equate immigration with American economic ruin as a matter of policy. That inflection point is now here.
It is hard to believe that the order would last for just 60 days. If it’s truly supposed to be a response to the economic conditions created by the pandemic, remnants of those conditions will remain long after the pandemic has dissipated. Trump may well decide that they remain forever; there will always be jobless Americans. When society begins to reopen, will immigration have survived the pandemic?
