The claimed authority in the Proclamation on \u201cRestriction On Entry Of Certain Nonimmigrant Workers<\/a>\u201d for the $100,000 immigration fee on H1-B visa holders is 8 U.S.C. \u00a7 1182(f) and 8 U.S.C. \u00a7 1182(f).\u00a0 Here are the relevant bits of those two code sections:<\/p>\n 8 U.S.C. \u00a7 1182(f)<\/p>\n (f) Suspension of entry or imposition of restrictions by President<\/p>\n 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. \u2026<\/p><\/blockquote>\n 8 U.S.C. \u00a7 1185<\/p>\n (a) Restrictions and prohibitions<\/p>\n Unless otherwise ordered by the President, it shall be unlawful\u2014<\/p>\n (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe; \u2026.<\/p><\/blockquote>\n I see three legal issues:<\/p>\n First whether 8 U.S.C. \u00a7 1182(f) has an \u201cintelligible principle\u201d defining the President\u2019s authority; if not, 8 U.S.C. \u00a7 1182(f) would be an unconstitutional delegation of power. Here the purported principle is whether “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”.\u00a0 That may seem vague and general, and it is, but probably not more so than other things that have been held to be an intelligible principle. A slightly harder question is whether the imposition of a $100,000 fee on H1-B entry to the US exceeds that delegation?\u00a0 Alternately, are aliens incapable of paying the $100,000 fee the sort of group that constitutes a “class of aliens” as contemplated by the statute? They may be a social<\/em> class but that doesn’t seem to be what the statute contemplates…<\/p>\n Second, is this a lightly disguised tax as opposed to something contemplated by the statute? This is akin to the claim now before the Supreme Court in the appeal of the Federal Circuit’s decision in VOS Selections Inc v Trump<\/a> as to whether IEEPA empowers the President to set tariffs where it nowhere mentions them.<\/p>\n Third, is the $100,000 per entry or re-entry a \u201creasonable rule\u201d under 8 U.S.C. \u00a7 1185(a)?<\/p>\n I think this is very doubtful. But even if it is reasonable, one still would need to explain why a lack of authority under \u00a7 1185(a) would limit the argued authority in \u00a7 1182(f). I think this could be an occasion for application of the General\/Specific Canon (approved by Justice Scalia, no less): “If there is a conflict between a general provision and a specific provision, the specific provision prevails (generalia specialibus non derogant<\/em>),” but I’d defer to people who know more about immigration law than I do.<\/p>\n The post Trump’s Proclamation Setting a $100,000 Fee for the Entry of H1-B Visa Holders to the U.S. rests on Debatable Foundations<\/a> appeared first on Discourse.net<\/a>.<\/p>\r\n
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