U.S. District Court Judge Michael Simon, sitting in Portland, Oregon, has issued a preliminary injunction blocking the Trump administration’s requirement that immigrants either obtain health insurance or demonstrate they can pay for medical care, before the Department of State (DOS) may grant them visas. This preliminary injunction is effective nationwide.
Judge Simon’s action was allegedly motivated by the apprehension that the new policy would separate individuals who plan to migrate to the United States from family members who already reside here. But while the judge expressed baseless concern that the Trump administration was “re-writing” the Immigration and Nationality Act, he appears to have unilaterally redefined immigrant visas as a statutory entitlement, guaranteed to any foreign national who demands one. However, by that logic, virtually all inadmissibility criteria are impermissible and the U.S. would be obligated to admit even violent criminals and terrorists who have applied for a family-based visa.
In addition, Judge Simon appears to have completely ignored the line of Supreme Court cases on this issue, beginning with Phelps v. London (1929) culminating with Kerry v. Din (2015), which clearly hold that there is no constitutionally protected right entitling foreign nationals to join their relatives in the United States. As such, there is a serious question as to whether the court was even entitled to review this matter or whether it should have summarily dismissed it for failure to state a valid cause of action.
Moreover, it is a settled matter that visa decisions made by consular officers are not subject to review by the courts of the United States. Similarly, Executive Branch guidelines dictating how DOS personnel should adjudicate visa applications have repeatedly been held to fall within the “plenary power doctrine” – the legal rule holding that the President possesses an unreviewable power to take action on matters that affect U.S. sovereignty.
This ruling is only the latest from within the notoriously anti-Trump Ninth Federal Judicial Circuit, which has repeatedly engaged in torturous interpretations of immigration law in order to elevate the interests of foreign nationals over the public safety and economic security concerns of U.S. citizens. It remains to be seen whether this misguided decision will be overruled by the Supreme Court. Meanwhile, Americans remain responsible for shouldering the massive healthcare bill for recently arrived immigrants who can’t afford insurance.
