HUENNEKENS: The NO BAN Act Is Politics At Its Worst

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House Democrats recently voted to strip the president of one of the most important tools at his disposal to protect America from foreign threats: the ability to suspend travel to the United States. The Democrats voted 233-183 to pass the NO BAN Act. Had this bill been law in early 2020, President Trump would have been unable to ban travel from China and Europe, which saved American lives according to the Centers for Disease Control (CDC). 

Under current law, the president can react in real time to national security threats by restricting the entry of aliens under the authority laid out in Section 212(f) of the Immigration and Nationality Act. The law reads:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Of course, the threat that President Trump acted to head-off in early 2020 was a virus. Viruses do not have advocacy groups, lawyers or allies in Congress. As such, House Democrats all but endorsed Trump’s coronavirus travel bans in January and March.

Initially, House Democrats staged the vote for the NO BAN Act in March 2020, at the onset of the coronavirus health crisis in the United States. On the same day in March that the House debated the NO BAN Act, President Trump issued a similar temporary suspension on travel from Europe, citing the continent’s rapid growth of coronavirus cases. Later on that same day, the Democrats quietly pulled the NO BAN Act from consideration. 

Non-microbial threats are another matter. Earlier in his administration, President Trump exercised his 212(f) authority to bar the admission of foreign nationals from countries whose governments support and harbor terrorists. Many of these nations happen to have Muslim majorities, which led to accusations that the ban was being applied based on religion (which would be patently illegal) rather than on the actions and policies of these foreign governments (which is not only legal, but rational). Moreover, the list of countries identified as terrorism threats had been compiled by the Obama administration, and not all of them we Muslim majority, nor were all Muslim majority nations on the list. Ultimately, the Supreme Court ruled that the president acted within his authority, based on objective national security concerns.

Nor was Trump the only president to impose blanket bans on admission of nationals from hostile nations. In 1980, President Jimmy Carter barred admission of Iranian nationals amidst the hostage crisis and bellicose threats by the country’s Islamist regime.

The Executive’s broad 212(f) authority was again tested and upheld in 1986 in Abourezk v. Reagan, which challenged the administration’s decision to deny admission of foreign nationals based on the assertion that their mere presence was prejudicial to the public interest. The action of the Reagan administration was upheld by the D.C. Circuit Court of Appeals. Writing the opinion for the court, then-Circuit Court Judge Ruth Bader-Ginsburg stated that in circumstances in which the admission of certain foreign nationals would be detrimental to the public interest, the president’s 212(f) authority ensures that “the Executive would not be helpless in the face of such a threat.”

Leaving the Executive helpless in the face of a national security threat posed by the admission of certain foreign nationals is exactly what the NO BAN Act would do. And the motivation of House Democrats for stripping the president of this power is blatantly political, as their decision to table the bill in March clearly demonstrates. President Trump’s decision to invoke 212(f) and impose travel restrictions in response to swiftly spreading pandemic, and Congress’ tacit acquiescence to that action affirmed the efficacy of this provision of the law.

In essence, the NO BAN Act amounts to a political effort on the part of House Democrats to curb abuses of 212(f) powers that do not exist, while leaving the nation vulnerable to national security and health threats that do exist. The bill will die in the Senate – because it is blatantly political and unnecessary – but it poses a dangerous challenge to what has heretofore been a bipartisan consensus that presidents should have the flexibility to act quickly to prevent dangerous people or diseases from entering the country, and that we should always err on the side of caution.

Preston Huennekens is a government relations associate at the Federation for American Immigration Reform (FAIR).