DOJ Tells Judge No Evidence Is Needed To Justify Visa Ban

By Suzanne Monyak
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Law360 (September 11, 2020, 10:33 PM EDT) -- President Donald Trump did not need to back up his assertion that foreign workers hurt the U.S. labor market when he suspended work visas by fiat, a government lawyer argued in California federal court on Friday in the latest test of the executive's powers.

Responding to U.S. District Judge Jeffrey White's request for more evidence supporting the rationale behind Trump's proclamation — which barred foreigners abroad from moving to the U.S. on new work visas through the end of the year — the U.S. Department of Justice's Joshua Press said that none was necessary.

"I do want to be clear that the proclamation itself does not have to be supported by the record at all," Press said, saying that past presidents have issued immigration restrictions "as concise as one sentence."

In their lawsuit, the U.S. Chamber of Commerce and several trade associations — including a coalition of technology giants that counts Apple and Google among its ranks — have contended that the visa suspension, purportedly issued to free up jobs for U.S. workers, actually hurts the economy.

The business groups have also cited statistics showing that unemployment in the tech industry, which draws many foreign workers on high-skilled visas, has remained low even amid the coronavirus pandemic.

But the court should not wade into a battle between "dueling statistics," Press said, insisting that the president's statement that bringing in new foreign workers hurts U.S. workers is sufficient for the proclamation to pass court muster.

"It is not for [the plaintiffs] to make that call, and it is not for the judiciary to substitute their judgment on economics," Press said.

The case is the latest opportunity for the federal courts to consider the limits — if any — on the president's authority to bar foreign nationals from the U.S. when he determines it is in the national interest, after the U.S. Supreme Court concluded that Trump has "broad discretion" to do so when upholding his travel ban targeting Muslim-majority nations in 2018.

While Judge White asked probing questions of both sides during the two-hour arguments over those executive limits, he kicked off the proceedings with a statement hailing the U.S. as a "nation of immigrants." He also noted that where Congress has failed to pass immigration reform, "the executive has stepped into this context with unbridled aggression."

The Ninth Circuit has already indicated that the president's authority to ban foreign citizens may not be entirely unfettered. In May, a panel for the federal appeals court kept in place a lower court order blocking one of Trump's other proclamations, which would have barred green card applicants abroad who can't prove they can afford health insurance.

In the majority opinion denying the government's request to pause that injunction, the panel found that the proclamation "was issued with virtually no factual findings, minimal reasoning, and an extremely limited window for public comment, raising serious questions as to whether the president has effectively rewritten provisions" of the federal immigration statute, known as the Immigration and Nationality Act.

The Ninth Circuit is currently weighing the government's appeal of that injunction on the merits.

Paul Hughes of McDermott Will & Emery LLP, who argued for the business sector challengers at Friday's hearing, leaned heavily on that Ninth Circuit decision, which he said established a baseline level of reasonableness that even presidential proclamations must meet.

"This particular proclamation doesn't even meet the most minimal standard adopted in Doe #1," he said, referencing the Ninth Circuit's May decision.

Moreover, he argued, the president cannot issue a proclamation that directly contradicts other laws passed by Congress that created the blocked visa programs, which include the H-1B visa for specialty occupations, L visas for internal transfers, J-1 visas for temporary trainees, and H-2B guest-worker visas.

"It has to be consistent with the guardrails that are put up in the INA, and that's fundamentally what's lacking here," Hughes told the judge on Friday.

But Judge White appeared to wrestle with the guardrails of his own authority to review Trump's proclamation and the rationale behind it, without making it obvious how he was swayed.

A week before Friday's hearing, a federal judge in Washington, D.C., weighing a separate set of challenges to the visa suspension order declined to block the proclamation, instead granting limited relief only to winners of the diversity visa lottery.

In that ruling, Judge Amit P. Mehta, an Obama appointee, specifically distanced himself from the Ninth Circuit's ruling over the health insurance restrictions and said he found the dissenting opinion in that case "more persuasive."

"I have to decide to what extent I agree with that," Judge White said of Judge Mehta's ruling. But he asked Hughes how he could legally probe the proclamation's underpinnings if, theoretically, he does decide that he disagrees with Judge Mehta's decision.

"What is the principle that would allow me to peel back the curtain to see if the emperor has any clothes?" Judge White asked.

He also questioned what standards he could use to determine what would constitute "minimal reasoning," in the words of the Ninth Circuit.

"Let's say I agree that that's an appropriate inquiry, how do I do that inquiry and what standards do I apply to it?" the judge said. "How do I judge whether something is minimal reasoning? The number of words, or what?"

"The standard I would suggest your honor, is, 'is it in the range of reasonable options?'" Hughes replied.

Speaking to Law360 after oral arguments, Hughes said that he "was gratified at the court's careful consideration of the issues and thoughtful appraisal of parties' positions in the case."

A spokesperson for the DOJ didn't respond to a request for comment.

Joshua Press of the DOJ's Civil Division argued for the government.

Paul Hughes of McDermott Will & Emery LLP argued for the business groups.

The case is National Association of Manufacturers et al. v. United States Department of Homeland Security et al., case number 4:20-cv-04887, in the U.S. District Court for the Northern District of California.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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