District Court Judge Tries to Block Trump Border Proclamation

Judge Randolph Moss of the U.S. District Court for the District of Columbia issued an order last week in Refugee and Immigrant Center for Education and Legal Servs. [RAICES] v. Noem. That order attempts to block the border and port restrictions implemented by President Trump’s Proclamation 10888 — which have brought an unprecedented level of security to the Southwest border. It’s a doozy, and DOJ has already filed its notice of appeal. We will soon see whether the simple prospect of applying for asylum and similar protections is so overpowering in the law that it trumps border security.

Proclamation 10888

Trump issued Proclamation 10888, “Guaranteeing the States Protection Against Invasion”, on his first day back in office.

Under the authority in sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), section 1 of the proclamation suspended entry by “aliens engaged in the invasion across the southern border” (i.e., illegal entrants) and section 2 restricted their ability to apply for asylum under section 208 of the INA.

Section 3, again using the powers in sections 212(f) and 215(a) of the INA, suspended the entry of both illegal entrants and aliens stopped at the ports who failed “to provide Federal officials with sufficient medical information and reliable criminal history and background information” necessary to determine whether they are inadmissible under sections 212(a)(1) through (3) of the INA, which bar the admission of aliens on health-related, criminal, and national security grounds, respectively.

Section 4 of Proclamation 10888 relied on the federal government’s duty to “protect each state against invasion” in Article IV, section 4 of the U.S. Constitution to, again, “suspend the physical entry of any alien engaged in the invasion across the southern border of the United States”.

Returning to sections 212(f) and 215(a) of the INA (and the Constitution generally), section 5 of the proclamation directed DHS, DOJ, and the State Department to “take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States”.

INA Section 212(f) and the Threat of “Invasion”

During the Biden administration, I wrote extensively about the expansive power Congress gave the president in section 212(f) of the INA to suspend the entry of aliens into the United States — usually in response to arguments that Biden needed Congress to act before he could secure the border.

It states, in pertinent part:

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.

As the Supreme Court explained in its landmark 2018 decision in Trump v. Hawaii (assessing the legality of executive branch travel restrictions for nationals of certain, mostly Muslim-majority countries, which were based on that provision):

[Section 212(f) of the INA] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [section 212(f) of the INA] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. [Emphasis added.]

Section 4 of Article IV of the U.S. Constitution, in turn, states: “The United States shall guarantee to every State in this Union a Republican Form of Government [i.e., “no kings”] and shall protect each of them against Invasion.”

That “invasion clause” was referenced by Texas Gov. Greg Abbott (R) in a November 2022 letter he sent to President Biden complaining that the then-administration was failing to protect his state from cross-border incursions by illegal migrants and smugglers.

Because the Biden administration was failing to protect Texas from “invasion”, Abbott contended, he was compelled to invoke another constitutional authority, Article I, section 10, clause 3, which states: “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added.)

Abbott didn’t actually go to war (except in a metaphorical sense), but he did use that claimed authority to bolster Texas state law enforcement’s ability to deter migrants from crossing the Rio Grande.

Judge Moss’s Order

Judge Moss’s opinion is massive (128 pages), but, in brief, he first granted RAICES’s motion for summary judgment, finding that neither section 212(f) nor the Constitution permit the president to “abrogate” the INA with respect to illegal migrants’ ability to seek asylum and related protections.

He then certified a class “consisting of all individuals who are or will be subject to the Proclamation and/or its implementation and who are now or will be present in the United States” over DOJ’s strenuous (and well-reasoned) opposition (he deferred for now ruling on those who have already been removed).

For example, as the government explained, “several Named Plaintiffs’ and numerous class members’ claims relate to the application of the expedited removal procedures” under section 235(b)(1) of the INA.

The problem, according to DOJ, is that section 242(e)(1)(B) of the INA bars the courts from certifying any class “in any action for which judicial review is authorized” under that provision.

In any event, Judge Moss enjoined the government “from implementing the Proclamation to remove” members of that rather expansive class “using non-statutory repatriation or removal proceedings”, i.e., without subjecting them to expedited removal, placing them in removal proceedings under section 240 of the INA, or reinstating their previously issued removal orders under section 241(a)(5) of the INA.

“All Individuals Who Will Be Present in the United States”

As noted, the class in question includes aliens who would be subject to the proclamation who aren’t here yet — in other words, aliens who may not have even decided to come here illegally.

There may be precedent for essentially granting standing to foreign nationals who aren’t in the country with no preexisting claim to be allowed to enter, but if there is one in this evolving area of the law, it eludes me.

Federal Rule of Civil Procedure 23 governs class actions, and in his concurrence in the recently decided case of Trump v. CASA, which basically killed nationwide (or “universal”) injunctions, Justice Alito warned:

Putting the kibosh on universal injunctions does nothing to disrupt Rule 23’s requirements. Of course, Rule 23 may permit the certification of nationwide classes in some discrete scenarios. But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of “nationwide class relief,” and today’s decision will be of little more than minor academic interest.

That’s prophetic, because five days later, Judge Moss issued his opinion in RAICES v. Noem.

This decision boils down to a belief that asylum and related protections are so overpowering that they trump any executive-branch action to keep aliens from crossing the border illegally that doesn’t include a chance to apply for those protections. Whether reviewing courts will agree with that belief is the question.