SEATTLE (CN) — President Donald Trump is using immigration policy to unilaterally change domestic policy contrary to laws set in place by Congress, an attorney told the Ninth Circuit on Thursday.
Trump’s October 2019 proclamation, which would bar entry to immigrants who cannot show they have health insurance or the money to cover hospital bills, is an attempt at lawmaking impermissible under the Constitution, attorney Tracy Flint told a three-judge panel of the Ninth Circuit.
“Congress cannot delegate to the president authority to make or amend or undercut laws based on his own unilateral interpretation of what domestic policy may be detrimental to the interests of the United States,” Flint said. “That’s not an intelligible principal for regulation of health care insurance or for any other domestic matter.”
Seven U.S. citizens sued over the proclamation, saying they were sponsoring family members who would be unfairly barred by the rule. The lawsuit called the proclamation a “plainly illegal” effort to impose “a draconian effect on the immigration system through presidential fiat.”
This past November, U.S. District Judge Michael Simon issued a nationwide preliminary injunction barring enforcement of the proclamation while the lawsuit proceeded. Simon found the proclamation is likely illegal because it would cause family separations — which Congress specifically wanted to guard against when it established the visa system.
Simon also wrote the proclamation was issued without authority, that its authors failed to back up the claim that immigrants cost the United States $35 billion per year and that it would reinstate an immigration ban on “paupers” that Congress outlawed in a 1990 amendment to the Immigration Nationality Act.
The government appealed, asking the Ninth Circuit to lift the injunction. The appeals court refused in December to do so on an emergency basis, with Chief U.S. Circuit Judge Sidney Thomas writing that allowing the rule to take effect before the case was decided would “disrupt” the status quo and make “major and unprecedented” changes to American immigration policy.
A divided Ninth Circuit panel ruled in May that the proclamation will remain blocked pending the government’s appeal of the injunction. Arguments on the appeal took place Thursday.
The case is distinct from a lawsuit over a Trump administration rule making it harder for immigrants to get green cards if they use public assistance programs like food stamps — a policy the U.S. Supreme Court ruled in April can take effect.
But that case was based on the president’s broad power to decide foreign policy, since the proclamation at issue was based on factors in place before immigrants enter the United States, such as their education, financial resources and job prospects, in order to determine if they would be allowed to enter the country, Flint said.
Here, Trump is trying to exert that same broad authority over domestic affairs, Flint told the panel. According to the Constitution, domestic affairs are governed by laws enacted by Congress, and not by the whims of the president.
Flint said the proclamation permanently alters the type of health care insurance immigrants are allowed to have after they enter the United States. The proclamation purports to override language in the Affordable Care Act, where Congress expressly allowed immigrants to use subsidized health care, Flint said.
In order to enter the country legally under the proclamation, “immigrants have to agree, have to demonstrate, have to represent that they will not use the comprehensive, subsidized coverage that Congress intended for them,” Flint said.
“When the president acts in a way that regulates internal or domestic affairs, as this proclamation does, he is strictly limited to using the powers that are enumerated in the Constitution,” Flint continued. “When federal power arose by taking power from the states when the Constitution was ratified, it was strictly limited when it acts internally, to the powers the Constitution specifies. That’s not true about foreign affairs, but the president cannot enlarge his powers over internal affairs through the use of his authority over external affairs.”
Flint likened the proclamation to a case over President Harry Truman’s attempt to seize control of the nation’s steel mills during the Korean War. In Youngstown v. Sawyer, Justice Robert H. Jackson wrote a U.S. Supreme Court decision rejecting the government’s argument that the president had authority to seize the steel mills in order to support troops abroad.
“The president may not use his power to engage in current foreign conflict to enlarge his mastery over the internal affairs of the country,” Jackson wrote in that case.
But that’s exactly what Trump is trying to do with this proclamation, according to Flint, by conditioning entry into the country on an immigrant’s agreement to decline benefits expressly provided by Congress.
“This proclamation uses power over entry in order to effect change in the domestic health care market,” Flint said. “It is a straightforward rejection of Congress’ solution to the very same problem: uncompensated health care costs. It is actually a judgment that Congress’ solution, subsidized ACA coverage, is part of the problem. It declares that immigrants who use subsidized ACA coverage are a financial burden on the United States and that their use of those benefits is detrimental to the United States. And that is directly contrary to what Congress legislated.”
Government attorney Brian Ward said that argument was one not raised until now and was not the basis for Simon’s injunction. He added that the proclamation doesn’t conflict with laws laid out by Congress because it only governs the moment when immigrants arrive at the U.S. border.
“The proclamation is aimed at this narrow gap of coverage that occurs at a high rate when individuals first arrive in the United States,” Ward said. “But they can satisfy that by showing that they have the resources to pay for medical care. They don’t even have to obtain coverage as long as they can show they have the resources for that. So I think that there’s no conflict here.”
The three-judge panel, comprised of U.S. Circuit Judges Jay Bybee, a George W. Bush appointee, Daniel Collins, a Trump appointee, and Bill Clinton appointee A. Wallace Tashima took the arguments under advisement.
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