Written by: Taher Kameli, Esq.

Among the 3 branches of the Federal government during the Trump administration, immigration policy generally has been characterized by inaction by the legislative branch, anti-immigration policies by the executive branch, and opposition to the executive branch by the judicial branch.  As another example of the opposition to the Trump administration’s anti-immigration policies by the Federal judiciary, an Oregon Federal judge has issued a nationwide preliminary injunction against the Trump administration policy denying visas to immigrants who cannot show proof of health insurance.

On October 4, President Trump issued, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”).  Section 1 of the Proclamation states, “The entry into the United States as immigrants of aliens who will financially burden the United States healthcare system is hereby suspended and limited . . . An alien will financially burden the United States healthcare system unless the alien will be covered by approved health insurance . . . within 30 days of the alien’s entry into the United States, or unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs”.  While the Proclamation was due to take effect on November 3, on November 2, in the case of John Doe #1 v. Trump, 2019 U.S. Dist. LEXIS 190469 (D. Ore. 2019), United States District Court for the District of Oregon Judge Michael H. Simon issued a temporary restraining order and injunction against the Proclamation and further advised that the court “will hold a hearing on Friday, November 22, 2019 . . . to determine whether a preliminary injunction should be issued”.

On November 26, Judge Simon decided (see John Doe #1 v. Trump, 2019 U.S. Dist. LEXIS 205080 (D. Ore. 2019)) that a nationwide preliminary injunction was appropriate.  Judge Simon ruled, “[T]he President’s Proclamation requiring legal immigrants to show proof of health insurance before being issued a visa by the State Department is inconsistent with the INA [the Immigration and Nationality Act of 1965].  In addition, and independently, the Proclamation was not issued under any properly delegated authority. It is, therefore, the duty of the Court in this case to preliminarily enjoin enforcement of that Proclamation. . . . [W]hen Congress delegates authority to the President in the immigration context and that authority involves foreign relations or national security, especially in an emergency or extraterritorial context, then the nondelegation concerns are lessened because the President has his own inherent powers under Article I. . . . The Proclamation, however, uses [Section] 1182(f) to engage in domestic policymaking, without addressing any foreign relations or national security issue or emergency.  In this wholly domestic context, the delegation by Congress is without any intelligible principle and thus fails under the nondelegation doctrine. . . . If the fact that immigrants come from other countries inherently make their admission foreign relations subject to the President’s Article II power, then all of this law would be superfluous. . . . Even if the Proclamation is not an unconstitutional exercise of domestic lawmaking authority under the nondelegation doctrine, it would still be unconstitutional under separation of powers. . . . Congress has already spoken in [Section] 1182(a)(4) on the issue of limiting immigrant admissibility based on the potential financial burden on the resources of the United States, and the Proclamation contravenes and overrides Congress’s explicitly stated direction and will. . . . Plaintiffs, therefore, have shown a likelihood of success on the merits on their claim that the Proclamation violates the Constitution’s principle of separation of powers and is outside the scope of the President’s authority granted in [Section] 1182(f). . . . There is no evidence in the record that immediate implementation of the Proclamation is necessary to help the ‘national interest’ of reducing uncompensated healthcare costs.  On the other hand, there is significant evidence that allowing the Proclamation to go into immediate effect will have an irreparably harmful effect on Plaintiffs, putative class members, state and local governments, and amici.  Weighing all the interests, the balance of the equities and the public interest tips sharply in favor of Plaintiffs, and supports preserving the status quo until the Court renders its decision on the merits”.

White House Press Secretary Stephanie Grishman was critical of Judge Simon’s decision, stating, “We look forward to defending the President’s lawful action”.  On the other hand, Esther Sung, attorney with the Justice Action Center, stated, “This decision is an important check on the Trump administration’s effort to rewrite our nation’s immigration and health care laws in violation of the boundaries set out in the Constitution”.

Judge Simon’s decision shows once again how a Federal judge can act to protect immigrant rights when challenged by the Trump administration.  For immigrants to prevail in cases like John Doe #1 v. Trump, 2019 U.S. Dist. LEXIS 205080 (D. Ore. 2019), it is critical that immigrants secure representation by skilled immigration lawyers, such as the Law Offices of Kameli and Associates, which has had years of experience and success in representing immigration clients.  If you need help with any immigration matter, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for support.