The Trump administration used this authority more broadly, to execute several large-scale restrictions on entry of noncitizens. In a series of orders known collectively as “the Muslim Ban” or “the travel ban,” President Trump used this authority to ban the entry of people from seven predominantly Muslim countries, even those who already had lawful permanent resident status. Courts found that this order was likely to deprive individuals of their due process rights by failing to give them such notice or a hearing prior to restricting their ability to travel. In response, the Trump administration introduced a revised 90-day travel ban of individuals from the same countries, but exempted those with green cards and added restrictions on North Koreans and certain Venezuelan government officials. This was largely seen as an attempt to circumvent constitutional challenges to the initial ban that it was based on racial or religious animus. Ultimately the third version of the travel ban was upheld by the Supreme Court in Trump v. Hawaii (2018). Notably, even in that decision, the court affirmed that 212(f) could not be used to “expressly override” other provisions of the INA.
In one of the most sweeping uses of the authority, President Trump used 212(f) to suspend the entry of noncitizens at the U.S. southern border between ports of entry in October 2018. This proclamation was almost immediately challenged in the courts by several legal service providers in East Bay Sanctuary Covenant v. Trump. The Ninth Circuit Court of Appeals blocked the ban from being implemented. Another ban, commonly known as the “third-country transit ban,” was then introduced by Trump in 2019 in an attempt to prevent individuals from claiming asylum in the United States if they first transited through a third country. This ban was also challenged in the courts by the East Bay Sanctuary Covenant and related organizations. The litigation is ongoing, as subsequent rules limiting access to asylum in the United States continue to be challenged.
Some other uses remain legally uncertain. There is an ongoing debate about the extent to which the president can use this authority to restrict immigration in response to perceived domestic issues. In April of 2020, the Trump administration issued a proclamation temporarily suspending the entry of people with non-immigrant visas, ostensibly to curb unemployment during the COVID-19 pandemic. Some courts found that since unemployment within the United States was a purely domestic issue, the authority to suspend immigration should not apply, while other courts disagreed and held that this was within the president’s authority. A similar debate played out in court regarding a different suspension of entry signed by President Trump which banned the entry of certain noncitizens who lacked specific health insurance plans. Both proclamations were later revoked by President Biden before these disagreements reached the Supreme Court, and the question of whether the authority may be used to address purely domestic policy concerns remains an unsettled area of law.
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