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Another Unprecedented Use of Presidential Power to Get Around Congress on Immigration

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Trump Bars Immigrants Without Health Insurance Using Same Authority Used in Travel Ban

Late on Friday night, President Trump issued a presidential proclamation that bars family members of U.S. citizens and lawful permanent residents and employees of U.S. companies from coming to the United States with a green card unless they obtain health insurance within 30 days of arrival or they “possess the financial resources to pay for reasonably foreseeable medical costs.” This means that a U.S. citizen who marries a foreign national without health insurance will not be able to live with their spouse in the United States unless they can quickly obtain health insurance or prove they are wealthy enough to cover the high cost of healthcare. Never mind that 8.5% of Americans are uninsured and that under the Trump administration, who has declared a war on the Affordable Care Act, the number of uninsured is on the rise by the millions, reversing a 10 year trend.

The presidential proclamation comes just a month after the Trump administration finalized a public charge regulation that could bar the working class and even some in the middle class from U.S. immigration by imposing major new financial, health, and age hurdles on legal immigration. The public charge regulation allows immigration adjudicators to consider whether someone has health insurance, among many other factors, to determine whether someone may become a public charge in the future. Under that regulation, however, they may not deny a green card based solely on lack of health insurance because Congress never gave the administration that specific authority.  

So, the president turned to extraordinary statutory authority — section 212(f) and 215(a) of the Immigration and Nationality Act — that for decades has only been used by other presidents to address exigent circumstances involving diplomatic, military, and national security issues and barred specific populations related to such issues. Here, the president is applying it across the board, for all immigrants from around the world, to address what is a domestic issue of rising health care costs and the lack of health insurance, made worse by President Trump.      

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:

This action is concerning not just because it is a limit on immigration based upon health insurance at a time when access to affordable health insurance is decreasing and the number of uninsured Americans is growing by millions due to actions taken by the president and Republicans in Congress. It is also deeply problematic because the President is using extraordinary powers in an unprecedented way to circumvent authority that, normally, only Congress would exercise. In other words, the president has once again acted in an extraordinary way to get around Congress. What’s next? Will he use this extraordinary statutory authority in more unprecedented ways to further encroach on Congress’ power and essentially rewrite the Immigration and Nationality Act by imposing even more requirements on immigrants that, normally, only Congress could do?

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:

Section 212(f) of the immigration code is not a loophole through which Trump can rewrite the immigration law as he sees fit. That’s Congress’s job, not Trump’s. Historically, presidents, including Trump, have justified the use of 212(f) when they’ve concluded that the presence of certain noncitizens in the U.S. raises national security concerns. Trump’s use of 212(f) to ban immigrants without health insurance is an unprecedented and dangerous use of the law to achieve one of his nativist policy goals–to severely restrict legal immigration, especially for hard working families seeking to reunite with a parent or child overseas. If Trump wants to propose legislation to limit legal immigration he has that right. But to brazenly use 212(f) to get around the Congress’s Constitutional authority is dangerous executive overreach.

President Trump’s Other Unprecedented Uses of Presidential Power  

Travel Ban: The president’s travel ban, issued just a week after his inauguration and modified over the next year, bans over 150 million people from a list of countries, 95% of them Muslim. Not only is it discriminatory, it is premised on statutory authority — section 212(f) and 215(a) of the Immigration and Nationality Act — that for decades had only been used by other presidents in exigent circumstances involving diplomatic, military, and national security issues and involving very specific and limited populations, not to completely bar 150 million people from various countries.      

National Emergencies Act: In another unprecedented use of presidential power, President Trump invoked the National Emergencies Act to take money from Congressionally appropriated projects to further fund a border wall using flimsy and unsubstantiated arguments of an emergency, or as 58 former national security experts stated “there is no factual basis” to declare an emergency. He did this on the very same day that he signed an appropriations bill that specifically rejected the president’s full border wall request, a bill passed by the Congress who controls the purse under the Constitution.