The Statue of Liberty.
President Joe Biden today lifted Trump’s coronavirus immigration bans, which banned almost all new immigrants from seeking permanent residence, and severely restricted entry due to many types of temporary work visas. Combined with Trump’s earlier large-scale efforts to reduce immigration of virtually all kinds, the 2020 executive action had the US closed to immigration to immigration to a greater extent than ever in its history, even during crises such as world wars and the Great Depression.
In this June 2020 Atlantic article, I criticized the public health and business reasons behind Trump’s policies. Far from improving the economy and public health, these measures make both worse. The damage would have been much greater if the bans had continued indefinitely, as Trump administration officials announced. In the long run, immigration restrictions hamper economic and scientific innovations that are essential to fueling economic growth and improving health care, such as the Covid vaccines, which are our best hope of ending the pandemic.
It is possible that Biden’s suspension of Trump policies will be challenged in court by immigration regulators. However, such a challenge is very unlikely to be successful. If these immigration bans, as the Trump administration claimed, were only at the discretion of the president, Biden has the power to lift them since Trump had to put them in place in the first place. On the other hand, if Trump policies were illegal, as I and other critics claimed, then Biden was even more right to repeal them. In this scenario, he was actually required to do so by law.
In October 2020, a federal district court ruled against Trump’s work visa ban for a number of reasons, including that it violated the principles of constitutional nondelegation. I’ve outlined the non-delegation case against Trump’s Covid immigration restrictions and previous travel bans here, here, and here.
Biden’s repeal of Trump’s policies will undo litigation against the latter and likely prevent a permanent precedent from being set (district court decisions are not a binding precedent for future cases). Hopefully future court rulings will establish the principle that it is unconstitutional for Congress to give the President virtually unlimited powers to expel immigrants he wishes for virtually any reason – as was the interpretation of Section 1182 (f) by the Trump administration is the case. of the Immigration and Naturalization Act. Trump’s position was broadly endorsed by the Court of Justice in the Trump v. Hawaii (2018) case. However, this judgment did not address the problem of non-delegation.
Alternatively, the problem of non-delegation can be resolved through measures taken by Congress. The No Ban Act, which was introduced by the Democrats in Congress last year and incorporated into the Biden administration’s new US Citizenship Act, would largely solve the problem by placing severe restrictions on the President’s authority in this area.
Biden’s willingness to lift Covid immigration restrictions is another sign that the new government is serious about pursuing an immigrant-friendly agenda. Some observers doubted Biden would be willing to overturn these guidelines lest he be accused of exacerbating the risks of the Covid emergency (though the Trump bans didn’t really help contain the spread of the virus). I admit I was among the doubters myself. But I am more than happy that I turned out to be wrong on this point. I’ve discussed the government’s other immigration initiatives here, many of which go far beyond the mere repeal of strict Trump guidelines.
This does not mean that Biden’s approach is ideal. Even if it were fully realized, it would not remedy nearly all of the many injustices in our immigration system. I myself have pointed out that pro-immigration policies run counter to the new government’s call for a minimum wage of $ 15 (which would exclude many new immigrants from the labor market). Fortunately, it looks like the latter idea won’t get through Congress, in large part due to opposition from key moderate Democratic senators.
David Bier of the Cato Institute has a more pessimistic assessment of the new government’s policies (although written before today’s action). But in every reasonable way, Biden’s policies are at least a huge improvement over its predecessor – admittedly, a very low standard of comparison.