The Ninth Circuit Court Of Appeals Upheld Trump’s Healthcare Immigration Ban
On December 31, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld President Trump’s proclamation to bar migrants without approved healthcare insurance from entry to the United States - Doe #1 v Trump. Why such a decision came about? How we can explain it to our clients and their family members?
Trump's initial proclamation predicates itself on authority granted to him by the Immigration and Nationality Act (INA) Section 212(f). The Act gives Trump wide-ranging powers over immigration. By proclamation, the President can prevent foreign nationals from entering if they could be considered “detrimental to the interests of the United States”.
The use of the INA has come before many a federal judge over the past few years. Each court has ruled on the side of the President. In his comments to the court in Trump v Hawaii – a case heavily relied upon in Doe and one which upheld the Presidential proclamation to ban refugees and migrants - Judge Roberts noted that the INA “exudes deference”. It allows the president sweeping authority of matters of immigration. As was found in the Hawaii case, the president merely had to make the case that a specific class of migrants - marked by some identifying condition - could be said to be “detrimental” to the interests of the US in some way and he could lay down limitations, bans, or otherwise.
By the very act of becoming President, by gaining the confidence of the public through a free and fair election, it is presumed that the president is acting in the public interest. What is considered detrimental is partly determined by the President’s own vision of what he sees as being in the public interest. Given the fact that the INA “exudes deference”, what the President sees as being detrimental to the Public Interest is likely to be considered just that – detrimental.
The INA has kept judges from striking down Trump’s many immigration decrees. But it was borne of a different time – one that feared nefarious communist infiltrators. Fears like this are not so prescient today. Foreign infiltration by foot has evaporated. In the twenty-first century, state secrets are more easily obtained by, as it were, wire transfer. Allowing reference to an elderly piece of legislation – a part specifically designed to appeal to the worries of 1950s congressmen - seems to stand against the spirit of modern immigration law and judicial interpretation.
In Doe#1, the court did discount parts of Trump v Hawaii – parts on national security. Justice Roberts referenced the fact that Presidents tended to misuse their powers against migrant populations in retaliation, especially during times of geopolitical upheaval. As it was discussed it was decided that targeting policies at communities in retaliation would be outside the bounds of the law – against the spirit of the law.
How then, did the court come to their decision on Doe#1 and remain true to the spirit of immigration law? As I alluded to, the statute has been used throughout history as an instrument of security – a concern that migrants may endanger lives, or upset the wellbeing of US citizens. The Doe#1 case applied this legislation, a piece usually deployed in moments of national endeavor and security, and did so contrary to the spirit of the wider law around immigration.
Before Trump’s punishing proclamation, spouses, children, parents and the close kin of US citizens would have been able to join their families. Now they must have health insurance within thirty days of entry. They must be able to prove they can meet any “reasonably foreseeable medical costs”. Only the kind of plans employers offer their salaried workers will meet this standard of cover. For many, this means that sponsoring family members remains an impossibility. The door to the US is currently closed to those who would have previously been eligible for a visa.
For many, this decision will have been crushing. It was done outside the spirit of the law on immigration today. The letter of the law may allow for complete deference. The words themselves might allow the president free reign to proclaim away migrants But, it should be recognized that the INA is being misused. The purpose for which it was originally designed should be taken into account when decisions are being made regarding it. A more holistic approach – one taking account of the wider legal framework - is required to make judgements on cases like Doe#1 v Trump. If the INA is going to be examined regarding a proclamation made today, a broad scope of legal consideration is required. If judges focus solely on one, or a handful, of pieces of legislation and convenient precedents - precedents engineered to accommodate the fears of the past to ban people from entering the US today - there will no doubt be miscarriages of justice. This is not in the spirit of any law I want to live under.
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