Yesterday President Biden brought Donald Trump’s ban on a large number of temporary work visas for foreign workers to expire. He ended a grossly flawed policy enacted by the previous administration on the pretext that it was necessary to benefit the U.S. economy and contain the spread of Covid. In February, Biden overturned Trump’s accompanying policies that nearly prohibit the entry of immigrants seeking permanent residence in the United States.
Between those two steps, Biden ended a period when the US was more immigration closed than at any earlier point in its history. In truth, Biden should have ended the work visa ban sooner, as he did with the immigration ban. As he himself pointed out during the presidential campaign, the visa tape has nothing to protect the United States and “also harms the United States industry, which employs talent from around the world.”
But late is still much better than never. And I have to admit that Biden finished both guidelines faster than I originally thought. In a June 2020 article in The Atlantic, I set out in greater detail the legal and political flaws in migration and visa bans.
The expiry of the work visa ban is likely to lead to ongoing litigation challenging its legality. In October, a federal district court ruled against the Trump administration on the matter, in part because the far-reaching power claimed by Trump (and later continued for a while by Biden) violates the principles of non-delegation. The court issued an injunction prohibiting enforcement of the ban on the many employers, members of the U.S. Chamber of Commerce, the National Association of Manufacturers, and other industry groups who plaintiffs in the case.
The problem of non-delegation raised in this case is extremely important and applies to a variety of other immigration and trade restrictions. See my discussion here, here, here and here.
While Biden deserves credit for lifting work visa restrictions and immigration bans, as well as measures such as ending Trump’s “travel bans” against residents of numerous Muslim-majority nations, he has not yet ended all of the previous administration’s dubious immigration policies. Among other things, he is to blame for the fact that most migrants crossing the Mexican border have been expelled under Title 42. These policies account for much of the current crisis in which unaccompanied minors have been arrested at the border (as the continued displacement of family groups encourages families to send children to cross on their own).
Like the visa bans, the expulsions under Title 42 are of dubious legality and do not benefit public health. In fact, they were enacted by the Trump White House against opposition from CDC scholars who thought they were unnecessary.
The Biden government has taken a number of valuable steps to reverse its predecessor’s harmful immigration policies. But there is plenty of room for further progress.