There is a Federal Court case in Oakland CA that heard arguments on this question.
On September 11, Judge Jeffrey White heard oral argument for preliminary injunction in the case of National Association of Manufacturers and the U.S. Chamber of Commerce v. Homeland Security challenging Presidential Proclamation 10052 in the US Federal Court in the Northern District of California.
We tuned into watch the Chamber of Commerce’s lawyer Paul Hughes argue that the President’s powers do not extend to contradicting the law they, can only supplement them.
The issue turned on whether the Presidential proclamation barring the entry of foreign nationals on H-1B, H-2B, L-1 and J visas based on the domestic economic impact stemming from the Covid-19 Pandemic was lawful.
Mr. Hughes argued that to make such a proclamation required foreign relations and national security. He said historically the types of issues that these kinds of Presidential proclamations included three types of situations:
- Bars to citizens from certain countries that the US has a diplomatic strain;
- Members of organizations such as terrorist groups;
- Behaviors of people like dictators or those engaging in cyber attacks.
They have not been used and cannot be used to contradict the regulations. They can supplement them. He said the Proclamation contradicted the regulations and gave a few examples”:
- Increasing the prevailing wage of the H-1B visa;
- Increasing the term an employee must have spent with a company from one year to two for an L-1 visa; and
- Limiting the industries that can obtain the visas.
He suggested that these types of regulatory matters are the preview of Congress or should be issued through a regulation with notice and comment period.
The Govt’s attorney countered that all issues involving aliens were issues of foreign affairs and cited the case of Hawaii v. Trump to support his position granting the President very broad powers in this realm.
The case may come down to the level of deference, or power the President may be given to implement such as proclamation.
He has a higher level of deference for issues of foreign affairs than domestic affairs.
As the purpose of the proclamation is to protect American jobs because of a domestic economic issue this is a tough argument for the government.
Further, the Trump Administration has been countered by the Court on numerous instances or going too far with its agencies, because it attempts to circumvent or follow long established processes.
This Administration has openly taken on the H-1B visa. Using the pandemic and the economic downturn to change law using an emergency proclamation is not the proper way to change law.
The Chamber of Commerce attorney argued the framers of the constitution did not intend to give a President absolute powers to remove the powers of Congress to establish laws.
Judge White raised the question to the Government attorneys whether the open-ended proclamation was just an indefinite change of the law.
But he also asked the Plaintiff’s attorney how the President’s use of INA 212(f) that he can suspend and improve any regulation was violated by issuing this regulation.
The Chamber’s attorney said this clause had to work within the framework of the law and it was not absolute.
We will be monitoring this important case closely.
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