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Trump Judge Would Allow President to Violate Separation of Powers to Limit the Entry of Immigrants: Confirmed Judges, Confirmed Fears

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Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In December 2019, Trump Ninth Circuit judge Daniel Bress dissented from a denial of an emergency temporary stay of an order blocking the nationwide implementation of the unconstitutional Presidential Proclamation No. 9945, which limits the entry of immigrants into the U.S. The case is Doe v. Trump.

The president issued the Proclamation, which suspends and limits the entry of immigrants who cannot provide proof of health insurance coverage or the ability to pay for reasonable medical costs within 30 days of entering the U.S., in October. The Proclamation claims that lawful immigrants are three times more likely than U.S. citizens to not have healthcare and more likely to impose financial and public health burdens – all detrimental to U.S. national interests.

Before the Proclamation went into effect, an Oregon county, an Oregon advocacy organization and several U.S. citizens with potentially affected family members sought a temporary restraining order in district court to block nationwide enforcement of the Proclamation.

The district court granted the temporary restraining order and concluded that the Proclamation contradicted the public charge provisions of the Immigration and Nationality Act. The court specifically found that the Proclamation would affect “approximately 60%” of all immigrant visa applicants and that Trump had offered “no national security or foreign relations justification for this sweeping change in immigration law.”  The government sought from the Ninth Circuit an emergency stay of the district court’s order pending appeal.

In a 2-1 decision, the Ninth Circuit majority denied the government’s emergency motion to stay the order, explaining that the Proclamation was unconstitutional under the separation of powers and that it would make “major and unprecedented changes” to American immigration policy. Moreover, the harms the government alleged would not be immediate.

Judge Bress strongly disagreed, asserting that the court order would produce irreparable harm every day it persists, even though the majority noted that the rule had not yet taken effect, and that even the Trump administration had claimed only “long-term” and not “immediate” harm if a stay was not granted. Bress also maintained that the president possesses sweeping proclamation power and is authorized to issue them, despite the majority finding that the Proclamation would make “major and unprecedented changes.”

The Trump administration has already sought Supreme Court review of a similar injunction against a rule linking immigrants’ legal status to their use of public benefits – another barrier to entry designed to keep immigrants out of the U.S. Judge Bress and other Trump appointees continue to indicate that they will gladly comply with his agenda on the court bench; thanks to the majority ruling in this case, immigrant families will have a window of time to  stay together.