President Donald Trump cannot stop using, and abuse, his legal authority to block the entry of non -citizens in the country.
When granting a prohibition of trips of the citizens of the Muslim majority countries at the beginning of their first mandate, it did so invoking section 212 (f) of the Immigration and Nationality Law, which allows it to block the detriment states of Antihy. “
When a proclamation is issued that rejected non -citizens who could not demonstrate the ability to pay their medical care costs, said section 212 (F).
When he stopped most of the legal immigration at the beginning of the Covid-19 Pandemia, first from China and after other countries, there was a section 212 (f) again.
Finally, last week, he announced that it would prevent foreign students from receiving students from students to attend Harvard and implement a trip prohibition in 12 countries, as well as restrictions on seven others. The prohibition of traveling entered into force on Monday, just after midnight, and the legal framework for both orders was built in section 212 (F).
Some of Trump’s attempts to invoke section 212 (f) have been challenged in court. Judges canceled several versions of Trump’s first period trip prohibition before the third ir that was confirmed by the United States Supreme Court (after it expanded to include non -Muslim countries). President Joe Biden terminated the prohibition of traveling, as well as the prohibitions of COVID-19 and medical care, when he touched the position, refusing to defend the issue in legal challenges.
More recently, a federal judge in Massachusetts also blocked Trump’s order on Harvard students, and until Monday, the State Department had returned to process international visas of students.
However, when testing the limits of 212 (f) through thesis policies, Trump has made the Supreme Court affirm its broad to prohibit foreigners under the immigration law, marking a key expansion of the executive authority.
While the previous presidents invoked section 212 (F), none of them did so as often or aggressively as Trump. The law has become a key tool to keep people out while Trump tries to implement their restrictive vision of American immigration policy.
How Trump expanded presidential powers to prohibit foreigners
Before Trump, democratic and republican presidents moderationly used authority 212 (F). In general, it was used to enforce sanctions from the United Nations or individuals or target groups associated with terrorism, human rights violations, drug trafficking or specific international crises.
Former President Barack Obama, for example, used the authority to prevent Russian officials from entering the United States after Crimea’s invasion in 2014 from his country.
Former President George W. Bush used it to block Syrian officials after the murder in 2005 of the Lebanese Prime Minister at the hands of the militant group backed by Sirio Hezbollah, which the United States designates as a terrorist organization.
Former President Bill Clinton used it to impose restrictions on Nigerian military officers who prevented the country’s transition to democracy annuling the 1993 elections of the country.
Trump’s conceptualization of 212 (F), however, is remarkably different. He has used the authority to block broad stripes of non -citizens of a variety of countries, not only their government officials or persons involved in criminal activities. He has not saved the owners of visas or green cards in some cases, including those affected by their first prohibition of traveling.
That has created a new legal paradigm that has granted the president’s sweeps to keep immigrants outside.
The 2018 Supreme Court decision defending Trump’s first travel ban made that change. The president of the Supreme Court, John Roberts, wrote in the opinion of the majority that section 212 (f) “exudes deference to the President in each clause.” For that reason, the court refused to question the justification of national superficial security that Trump provides for the prohibition of traveling.
That is despite the substantial evidence that the real motivation behind the prohibition was, as stated by Judge Sonia Sotomayor in the dissent, “Animus anti-Musulm” that violated the protections of religious freedom of the Constitution. This evidence included Trump’s campaign statements in 2015 that requested “a total and complete closure of Muslims entering the United States”, to which the lower court judges indicated when blocking the previous versions of the prohibition of travel in 2017.
The question is whether the judges will postpone Trump again if the new trip prohibition and prohibit Harvard students appear before the Supreme Court.
According to Stephen Yale-Loehr, professor of retired immigration law at the Cornell Law Faculty, “judicial challenges for this prohibition of traveling, but can fail, are probable.” However, Yale-Loehr said: “Even if this expansion is legal, it is not a good policy. We are not necessarily safer to prohibit immigrants from the thesis countries.”
Notable, the new travel ban includes exemptions for green card holders, non -citizens of affected countries that are already in the United States and athletes from affected countries that compete in international competitions such as Olympic Games. He has also invoked visa supervision potential, in addition to the usual national security reasons, in the justification of his last prohibition.
All that could help Trump’s case if the policy is challenged in court. Unlike a general prohibition of immigrants from affected countries, it adapts to resist legal scrutiny by guiding only immigrants who are not currently in the United States. In addition, the invocation of national security conerns of the prohibition places it in territory where the president has generally been affirmed by the courts by the courts.
Given the deprived of the new prohibition and the previous history of the administration before the Court, some immigrant defenders have resorted to Congress, instead of the courts, to intervene. They are asking for a legislative solution to prevent Trump from implementing policies that affect both US citizens who could be separated from their families and citizens from foreign countries who hope to enter the US. UU., They thought that such a certainly lying the government.