In a closely watched case on the limits of presidential authority over immigration, a federal judge issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. U.S. District Judge Jeffrey S. White ruled the president does not possess the power of a monarch to cast aside immigration laws passed by Congress.
Judge White’s October 1, 2020, order in NAM v. DHS prevents the State Department and Department of Homeland Security (DHS) from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.” The preliminary injunction remains in effect pending trial, unless overturned on appeal, and applies to the plaintiffs, which include Intrax and the member companies of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation and TechNet.
At the September 11, 2020, hearing in the U.S. District Court for the Northern District of California, Paul Hughes of McDermott Will & Emery, counsel for the plaintiffs, framed the issues before the court as follows: If Congress delegated unlimited authority to the president under Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), the law is unconstitutional as an unlawful delegation of authority by Congress. If the authority is not unlimited, then there are limits to the president’s authority based on rational standards, the Supreme Court’s decision in Trump v. Hawaii and the 9th Circuit decision in Doe #1 v. Trump.