Text of President Trump's Executive Order on Immigration, "Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel CoronaVirus Outbreak" Signed 22 April 2020

I have been thinking about the expected Executive Order that President Trump announced on Monday 20 April (I have been thinking about the expected Executive Order that President Trump announced on Monday 20 April (The (Re)Construction of Borders After COVID-19: President Trump And the Intention to Suspend Immigration to the United States).

The focus was not on migration as a normative or moral issue, or as the implementation of those normative and moral positions through law.  These aspects of migration, of course, have managed to absorb practically all of the attention of generations of lawyers and policy makers who have come to view the issues as essentially and permanently centered on their construction of the ideal migrant (that is on the foundational narrative of migration from which principal, norm and morals may be extracted and converted into law. 

Rather, my focus was on the de-centering of this once unassailable discursive trope (though a powerful one as already suggested), a de-centering accelerated in the course of the COVID-19 pandemic. That is, that migration itself was a consequential rather than a primary object of normative and moral constructions.  Migration was the means through which principles of efficiency, principles of welfare, and principles of production might be rationalized, in combination with the other important productive forces necessary to ensure the economic well being of a community.This has been one way of understanding the Trump administration's approach to migration, as well as the source of its antipathy to the old orthodoxy of open borders and unconstrained migration of individuals and peoples.  In place of a baseline of rights to movement without reference to borders, Mr. Trump. like others, thought to re-frame the discussion from the individual to the border, and from the migrant to the receiving community. COVID-19 provided the necessary acceleration to move that discursive battle  to regulatory reform. A concession that borders could be used to manage the inflow and outflow of people provides a basis for extending that principle.

All of this is much in evidence in the text of the Executive Order, "Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel CoronaVirus Outbreak" Signed 22 April 2020.  Note the language of the introductory paragraphs.  It speaks to the centrality of mitigation--the language of risk aversion.  That principle of mitigation is activated at and through borders--which are permeable but not open. Mitigation, however, is a principle that may be transposed from the context of disease to that of diseases of the economic system.  Just below the surface is the analogy that as the COVID-19 virus is to individuals, the immigrant is to the body of the American economy.  In both cases the virus--the infection of the body, or the body politic, must be confronted and its damage mitigated. Just as there is no way to protect the individual body against the ravages of COVID-19, "There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply." (EXECUTIVE ORDER PREAMBLE).

PIX: Trump signs order pausing immigration for 60 days, with exceptions

But not all people are affected by the virus in the same way; it is just the most vulnerable who succumb.  The same parallelism is drawn to the virus of migration, whose effects, especially during times of pandemic, are felt by those least able to resist its deleterious effects. "In recent years, these workers have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and the disabled." (EXECUTIVE ORDER). And yet there must be an accommodation especially where the disease does not produce permanent harm.  And so there must be a distinction between permanent migration, and the temporary residence of foreigners who will eventually leave after contributing positively to the economic life of the Republic (in return of course for the benefits to them of that residence). Where an individual enters the US for the purpose of contributing to production--like a sum of capital, or an investment, or raw materials--borders continue to be managed but open, the way they are for goods, investment and capital.  But where that individual can no longer be viewed as a specifically utilized factor of production, then the border becomes noticeably harder.

This is the narrative--a narrative of borders, of managed permeability, of free movement of workers for the purpose of work, but an interdiction of others seeking to join the body politic on a more permanent basis--this is the narrative that permeates the morality, the normative orientation, and the policy of the present Administration, it flows seamlessly from and through pandemic.  It is a plausible response.  But at the same time it represents a rupture in the way that Americans had been taught to think about migration--its fundamental reality-making premises--that is likely to produce a substantial and quite energetic response. Indeed, for those embracing the old orthodoxy, there can be no sense in it (e.g., Opinion: "No, Mr. President, Your Immigration Powers Are Not Unlimited," New York Times  22 April 2020). In place of the ideal immigrant, there is now a useful factor in the production of the welfare of the state. That is the essence of the heart of the Executive order--not the suspension of permanent migration--but the substantial list of exception in Section 2(b). Humanitarianism will move to the margins; it will not disappear.  But at the same time it will no longer serve as the founding premise of policy (at least until and unless there is a change in national political leadership).

The text of the Executive Order follows; courtesy of CNN:

SUSPENSION OF ENTRY OF IMMIGRANTS WHO PRESENT A RISK TO THE UNITED STATES LABOR MARKET DURING THE ECONOMIC RECOVERY FOLLOWING THE 2019 NOVEL CORONAVIRUS OUTBREAK

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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION


The 2019 Novel Coronavirus (COVID-19) has significantly disrupted the livelihoods of Americans. In Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak), I declared that the COVID--19 outbreak in the United States constituted a national emergency, beginning March 1, 2020. Since then, the American people have united behind a policy of mitigation strategies, including social distancing, to flatten the curve of infections and reduce the spread of SARS--CoV--2, the virus that causes COVID-19. This needed behavioral shift has taken a toll on the United States economy, with national unemployment claims reaching historic levels. In the days between the national emergency declaration and April 11, 2020, more than 22 million Americans have filed for unemployment.

In the administration of our Nation's immigration system, we must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor. We must also conserve critical State Department resources so that consular officers may continue to provide services to United States citizens abroad. Even with their ranks diminished by staffing disruptions caused by the pandemic, consular officers continue to provide assistance to United States citizens, including through the ongoing evacuation of many Americans stranded overseas.

I have determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand. Excess labor supply affects all workers and potential workers, but it is particularly harmful to workers at the margin between employment and unemployment, who are typically "last in" during an economic expansion and "first out" during an economic contraction. In recent years, these workers have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and the disabled. These are the workers who, at the margin between employment and unemployment, are likely to bear the burden of excess labor supply disproportionately.

Furthermore, lawful permanent residents, once admitted, are granted "open-market" employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy. There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply. Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak. The vast majority of immigrant visa categories do not require employers to account for displacement of United States workers. While some employment-based visas contain a labor certification requirement, because visa issuance happens substantially after the certification is completed, the labor certification process cannot adequately capture the status of the labor market today. Moreover, introducing additional permanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population. In light of the above, I have determined that the entry, during the next 60 days, of certain aliens as immigrants would be detrimental to the interests of the United States.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:

Section 1. Suspension and Limitation on Entry. The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.

Sec. 2. Scope of Suspension and Limitation on Entry.

(a) The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:

(i) are outside the United States on the effective date of this proclamation;
(ii) do not have an immigrant visa that is valid on the effective date of this proclamation; and
(iii) do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i) any lawful permanent resident of the United States;
(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;
(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
(iv) any alien who is the spouse of a United States citizen;
(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Sec. 3. Implementation and Enforcement.

(a) The consular officer shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation. The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State's discretion. The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security's discretion.

(b) An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

(c) Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Sec. 4. Termination. This proclamation shall expire 60 days from its effective date and may be continued as necessary. Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.

Sec. 5. Effective Date. This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.

Sec. 6. Additional Measures. Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Sec. 7. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States. Accordingly:

(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and
(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec. 8. General Provisions.

(a) Nothing in this proclamation shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or,
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-second day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP