Why You Should Care that Kansas Is Attempting to Intervene in Ninth Circuit Border Case
Section 212(f) is a powerful tool — but only if the courts allow the president to use it
By Andrew R. Arthur on May 7, 2024
On March 7, five states — led by Kansas Attorney General (AG) Kris Kobach — filed a motion to intervene in East Bay Sanctuary Covenant v. Biden, a case currently pending on appeal in the Ninth Circuit. You should care how that request plays out, because it could possibly either reinforce or spell doom for a future president’s use of the authority under section 212(f) of the Immigration and Nationality Act (INA) — which is similar to but broader than Title 42 — to secure the border against illegal migrants.
Section 212(f), in Brief. Section 212(f) of the INA provides, in pertinent part, that:
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.
To put section 212(f) into context, the preceding section 212(a) of the INA contains the grounds of inadmissibility, reflecting Congress’ determinations as to which aliens should be admitted to the United States and on what terms, and which aliens should be barred from admission.
Section 212(f) trumps all of them, at least when it comes to admissibility. Basically, in section 212(a) of the INA, Congress says that certain aliens may be admitted to the United States, but then allows the president to say none of them are.
How broad is the authority in section 212(f)? As the Supreme Court explained in its landmark 2018 decision in Trump v. Hawaii (assessing the legality of executive branch travel restrictions for given aliens from certain countries, which were premised on that provision):
https://cis.org/Arthur/Why-You-Should-Care-Kansas-Attempting-Intervene-Ninth-Circuit-Border-Case
