The Supreme Court ruled in September of this year on the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States,” which has been labeled the “asylum proclamation” by several news outlets. The proclamation, which is the centerpiece of a new court case, banned asylum seekers from being granted asylee status if they had entered the country illegally. Thousands of asylees fleeing violence in their home countries have been forced back into precarious situations because of this rule. In the court case surrounding the regulation, Barr v. East Bay Sanctuary Covenant, the Supreme Court issued a stay pending appeal. In effect, this stay puts back in place the proclamation, which had been blocked by a nationwide injunction in late 2018 by temporary restraining order granted by U.S. District Judge Jon S. Tigar.

Tigar found the centerpiece of the administration’s defense of the proclamation, which relied on executive authority to restrict immigration found section 212(f) of the Immigration and Nationality Act, uncompelling. The section reads, “Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The asylum proclamation is not the first instance in which an administration has relied on section 212(f).

The first presidential use of section 212(f) as a justification for immigration restrictions was Reagan in 1981, nearly thirty years after Congress wrote the provision into law. After that, the floodgates had been open. Every President following Reagan has invoked section 212(f) at least once. Every use has not been without controversy, which manifests itself in the form of legal challenges to the proposed restrictions. The first legal challenge to a limit justified based on section 212(f) came with the section’s very first usage by Reagan, which suspended undocumented immigrants entering by sea. In the case, Haitian Refugee Center Inc., v. Baker, the Eleventh Circuit Court declared

Section 212(f) “clearly grants the President broad discretionary authority to control the entry of aliens into the United States.” The Court’s interpretation of the statute gave the President unparalleled power to determine which groups immigrants the government can deny entry.

Few other cases address the scope of section 212(f) as explicitly as Baker. While some decisions, like those in Sale v. Haitian Centers Council, Inc., Abourezk v. Reagan, and Chen v. INS address the use of section 212(f) in specific instances, they do not speak to the broader congressional delegation of power the Court found in Baker. It took the Court over a decade after Baker to take up the questions posed by section 212(f) in their entirety. The opportunity to address section 212(f) came about in a 1996 case, Encuentro del Canto Popular v. Christopher, decided by the U.S. District Court for the Northern District of California [6]. In the Encuentro case, the Court found, while discussing section 212(f), “the exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” The quote is originally from the decision in Knauff v. Shaughnessy, which was interpreting a pre-INA statute similar to section 212(f). Much like Baker, the decision in Encuentro read section 212(f) as granting broad executive discretion in deciding which immigrants the government can exclude. The central difference between Baker and Encuentro is that in Encuentro, the focus was not on the text of the statute, and instead on the constitutional values underpinning the legislation.

For over two decades, Presidents used section 212(f) frequently, empowered by the decisions granting them broad authority. It was not until the Trump administration’s recent usage of section 212(f) to justify the “travel ban” that controversy resurfaced. Some argued that the debate derives from the fact that the travel ban represents the most sweeping restriction ever implemented under section 212(f). Others claimed it is a result of the legacy of bigotry section 212(f) has, which was likely created to keep out Jews and communists in the 1950s. The fact that the first iteration of the travel ban the administration released only applied to predominantly Muslim countries bolsters the claim that bigotry was the basis for the ban. When the cases regarding the ban finally reached the courts, the 9th Circuit ruled that the travel ban “exceeded the scope” of section 212(f), but the Supreme Court ultimately left the ban in place. Finally, in the Court’s most recent case that centered on section 212(f), the Court ruled, in an unsigned opinion, to uphold the asylum proclamation. While this may not be a satisfying ending for the many critics of section 212(f), there is a reason to have hope.

Even though the opinion itself was not signed, the dissent was. Justices Ginsberg and Sotomayor laid the groundwork for setting a new precedent limiting the reach of section 212(f) by employing U.S. code and other legislation as external constraints on the executive’s power to implement restrictions on immigration. The two justices relied on the District Court’s ruling as a guideline for their decision. They referenced all three reasons the District Court found the asylum proclamation to be unlawful. First, the justices relied on U.S. Code § 1158(b)(2)(C). That portion of the code essentially mandates any further regulations are consistent with the asylum law, 94 Stat. 105. Also in section 1158is language that says any person “physically present in the United States or who arrives in the United States . . . may apply for asylum.” This language directly contradicts asylum proclamation, which precludes those who are physically present but entered illegally, from applying for asylum. Second, the justices conveyed that the asylum proclamation was unlawful because it failed to follow proper rulemaking procedures mandated by the Administrative Procedures Act, which requires that all rules go through a period of notice and comment, which the asylum proclamation did not.

Finally, the justices decided that the justification for the rule was “arbitrary and capricious.” The arbitrary and capricious standard is another portion of the Administrative Procedures Act, which allows the Court to invalidate any rule the government promulgates using “arbitrary and capricious” reasoning. The basic argument provided by the Trump administration to justify the rule was that the failure of asylees to apply for asylum in other countries that they fled through before getting to the United States proves their request for asylum in the United States is disingenuous and unnecessary. The District Court found overwhelming evidence to prove the opposite. Given that the District Court determined these arguments to be valid, its clear there’s sufficient legal backing for them to win in Court.

While these arguments did fail once they reached the Supreme Court, the lack of a published and signed decision makes the legal reasoning the Court relied on to refute them impossible to know. Evidence of these arguments soundness is clear given both the dissenting judgment in the Supreme Court and the District Court’s decision. Scholars should abandon the focus on attempting to apply direct restrictions to the scope of section 212(f), as the history of the courts’ interpretations shows they will continue to interpret it broadly. Instead, scholars should adopt the strategies of Sotomayor and Ginsburg and use other portions of the INA to reign in the executive. Reigning in the executive in these instances is essential. The government has arbitrarily denied thousands of immigrants entry into the United States, many of which are facing persecution and violence in their homes, and legal recourse is a must if they are ever to be granted entry.