The executive order restricting H1-B and other visas during the pandemic has been blocked and upheld by different federal courts.
A federal judge in California has struck down President Donald Trump’s executive order barring many types of visa entrants into the U.S. As a reminder, Trump issued this order in June because of the supposed threat foreign workers pose to native-born employment during the Covid-19 pandemic. The decision flatly contradicts a different ruling last month by a different federal district court judge in Washington, D.C. Both cases will now go to the respective courts of appeals. If those courts also disagree, and if Trump is re-elected and doesn’t retract the executive order, the issue could eventually make its way to the Supreme Court. Which judge is right? The answer depends on how you read the 2018 Trump v. Hawaii case in which the Supreme Court upheld the 3.0 version of Trump’s Muslim travel ban. The California federal court read the travel ban case narrowly and struck down the Covid-era order as beyond the president’s power and as insufficiently reasoned. The D.C. federal court read the travel ban case broadly and upheld the Covid-era order on the theory that federal law basically lets the president do whatever he wants with regard to immigration. My best guess is that if the case eventually gets to the Supreme Court, the justices would adopt the narrower reading of Trump v. Hawaii. The Covid immigration ban would thus ultimately be blocked. The alternative would be to give the president nearly carte blanche over immigration matters. That result would not sit well either with the court’s liberals or with all of its conservatives. Justice Neil Gorsuch, for example, doesn’t think Congress can just delegate all its power to the president. The swing vote would probably lie with Chief Justice John Roberts, who wrote the Trump v. Hawaii decision and would probably want to limit it. That ruling has worn poorly, especially when viewed against the backdrop of Trump’s systematic disdain for the rule of law.
