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):

[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.]

The justices rarely use language like “exudes deference”, which suggests how broad that authority is conceptually.

“Conceptually” and the East Bay Litigation. I should have emphasized “conceptually” because many executive actions based on legislative grants of power are subject to review by the courts, and that has certainly been true of 212(f).

Which brings me to an earlier iteration of this case, East Bay Sanctuary Covenant v. Trump.

On November 9, 2018, President Trump issued Presidential Proclamation (PP) 9822, “Addressing Mass Migration Through the Southern Border of the United States”. Premised on his section 212(f) authority, the then-president suspended the entry of aliens across the Southwest border for 90 days, except for aliens who came through the ports of entry and for aliens with certain humanitarian claims.

In other words, PP 9822 only applied to illegal entrants, and that same day, DHS and DOJ issued a rule barring illegal entrants subject to such a proclamation from applying for asylum. That rule is known as the “Port of Entry rule” because it limits asylum claims to aliens coming through the ports, not between them.

The same day the Port of Entry rule and PP were issued, a nonprofit organization filed a complaint in the U.S. District Court for the Northern District of California, in East Bay Sanctuary Covenant v. Trump.

The complaint alleged, inter alia, that the Port of Entry rule violated the INA. Ten days later, the judge assigned to East Bay, Judge Jon S. Tigar, agreed, issuing a nationwide temporary restraining order (TRO) blocking that rule.

The Trump administration sought a stay of that TRO, which was denied by a divided panel of the Ninth Circuit in December 2018. The third panel judge, Edward Leavey, explained: “I dissent from the denial of the motion to stay because the President, Attorney General, and Secretary of Homeland Security have adopted legal methods to cope with the current problems rampant at the southern border.”

Twelve days later, Judge Tigar granted a preliminary injunction in East Bay, blocking the administration from implementing the Port of Entry rule.

The Trump administration appealed that decision as well, and in a February 2020 opinion, a three-judge panel of the Ninth Circuit affirmed Judge Tigar’s orders. The court specifically held that section 212(f) was inapplicable here because it only allows the president to bar “entry”, whereas illegal migrants seeking asylum had already “entered”, albeit illegally.

The validity of that reasoning, however, was later cast into doubt by the Supreme Court’s June 2020 opinion in DHS v. Thuraissigiam. There, the justices rejected a claim by an alien apprehended directly after he entered illegally that a statute barring judicial review of his credible fear claim in expedited removal proceedings violated his due process rights.

As Justice Alito, writing for the majority, explained:

an alien who tries to enter the country illegally is treated as an “applicant for admission,” . ... and an alien who is detained shortly after unlawful entry cannot be said to have “effected an entry,” ... . Like an alien detained after arriving at a port of entry, an alien like respondent is “on the threshold.” ... The rule advocated by respondent and adopted by the Ninth Circuit [there] would undermine the “sovereign prerogative” of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location. [Emphasis added.]

Section 212(f) would plainly allow the president to deny entry to aliens seeking admission at ports of entry, and under Thuraissigiam, an illegal entrant — at least one apprehended directly after entry — hasn’t “entered” any more than aliens at the port have.

It should be further noted that the prior administration sought en banc review of that Ninth circuit decision, but it wasn’t until March 2021 — after Trump had left office — that the circuit court issued an amended version of its February 2020 opinion and an order denying rehearing en banc.

In a strongly worded dissent from the denial of rehearing en banc, circuit Judge Patrick Bumatay, writing for himself and five other circuit judges, explained:

We are not "Platonic Guardians" of our nation's public policies. ... As judges, we have no business standing athwart the choices of the political branches no matter how misguided we believe them to be. That fundamental limitation on our role is even more pronounced in the immigration context, where it is long settled that "the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." ... The Supreme Court has repeatedly warned us we overstepped our bounds when we tried to curtail immigration policies in the recent past. ... Unfortunately, we have not learned from our mistakes. Today, we once again second-guess the Executive's immigration policies.

The Biden administration didn’t seek review of that decision from the Supreme Court, but in Executive Order (EO) 14010, the president called upon DOJ and DHS to “promptly review and determine whether to rescind” the Port of Entry rule.

The East Bay litigation, however, didn’t end. In fact, the parties in that case and a companion case about another Trump border rule (East Bay Sanctuary Covenant v. Barr) filed a joint June 2022 statement with Judge Tigar, in which they told the court, “The government presently continues to pursue rulemaking with respect to the two rules at issue in these cases”, and asked the judge to hold the cases in abeyance pending the conclusion of the departments’ review of the rules.

The CLAP Rule and East Bay Sanctuary Covenant v. Biden. In May 2023, the departments finally acted on that rulemaking, issuing a rule captioned “Circumvention of Lawful Pathways” (the “CLAP rule”).

The CLAP rule created a rebuttable presumption that aliens who crossed the border illegally are ineligible for asylum, subject to exceptions and limitations. On May 8, 2023, the parties in East Bay Sanctuary Covenant v. Trump filed an amended complaint in that matter challenging the CLAP rule, in a case now captioned East Bay Sanctuary Covenant v. Biden.

In response, Judge Tigar issued an order in late July 2023, vacating and remanding the CLAP rule, but staying that order for two weeks to allow the Biden administration to seek further review from the Ninth Circuit, which the administration did.

In an order issued on August 3, 2023, the Ninth Circuit agreed to stay Judge Tigar’s order and expedite its consideration of the case, but its decision was not unanimous. Judge Lawrence VanDyke, who had also dissented from the denial of en banc review in the case in March 2021, dissented again, complaining:

My colleagues in today’s majority grant a stay pending appeal of a district judge’s order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration’s rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule). They did so in a published, precedential opinion, undeterred by a chorus of dissenting colleagues.


The Biden administration’s [CLAP rule] in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. [Emphasis added.]

Notwithstanding this apparent victory in the circuit court, in February Biden’s DOJ joined the plaintiffs in East Bay in filing a motion to hold the government’s appeal in abeyance pending settlement negotiations with the plaintiffs in that case, which the same Ninth Circuit panel — again on a divided two to one vote — granted on February 21.

The dissent was again authored by Judge VanDyke, and this time he made pointed accusations about the administration’s intentions, as I explained in late February. Specifically, he contended:

The administration’s abrupt about-face makes no sense as a legal matter. Either it previously lied to this court by exaggerating the threat posed by vacating the rule, or it is now hiding the real reason it wants to hold this case in abeyance. Given its success thus far in defending a rule it has consistently characterized as critical to its control of the border, and the fact that it has to realize its odds of success in this case can only improve as it works its way vertically through the federal court system, the government’s sudden and severe change in position looks a lot like a purely politically motivated attempt to throw the game at the last minute. At the very least it looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year. [Emphasis added.]

Most saliently, Judge VanDyke also posited:

the executive may once again be trying to insulate bad Ninth Circuit caselaw from Supreme Court review. As I and others have previously written, our Easy Bay precedents are clearly wrong. ... Yet they aided the Democratic cause by invalidating Trump-era immigration rules.

Motion to Intervene. Which brings me to the March 7 Motion to Intervene in East Bay, filed by AG Kobach for Kansas and joined by the AGs from Alabama, Georgia, Louisiana, and West Virginia.

Under Rule 24 of the Federal Rules of Civil Procedure, a court must permit “anyone” to intervene in ongoing litigation if granted that right by statute or if that person:

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Kobach and his fellow AGs contend that they have a right to intervene at this late stage in the government’s appeal because:

It is now clear that [Biden’s DOJ and DHS] will not provide adequate representation of the States’ interest in maintaining the Rule. The federal government vigorously defended the [CLAP rule] — until it mysteriously stopped. It seeks to settle with plaintiffs who are fighting the presumption, yet it continues to litigate against the states. It is “impossible to know the government’s exact motives for its current course of action because it hasn’t even attempted to tell us,” ... . Accordingly, it is also impossible for the States to rely on Defendants to support their interests. [Citations omitted.]

In case you’re curious, the quote in that excerpt is also from Judge VanDyke’s latest dissent, and the reference to “litigat[ing] against the states” alludes to the various lawsuits the Biden administration has filed to block efforts in Texas and other states to fill the void created by the administration’s lack of immigration enforcement.

On March 18, the government filed its opposition to that motion, alleging (among other things) that the states “have not demonstrated that their interests are not ‘adequately represent[ed]’ by the federal government, which has continuously defended the Rule and secured its continuance in the abeyance motion”.

Nonetheless, the latest filing in the court (on April 22) was a “Joint Status Report” from the plaintiffs and the government, explaining they “have been engaged in discussions regarding continued implementation of the challenged Rule and related policies and whether a settlement could eliminate the need for further litigation in this case”.

Understand that neither Kansas nor the four other states believe the CLAP rule goes far enough; their contention is that it’s better than nothing and that their intervention is necessary to keep even it from being watered down further or negotiated away.

As the dissents in the East Bay litigation reveal, there are serious border-security issues — including whether a future administration can use 212(f) to deter illegal migration — at stake in the Ninth Circuit. Ideally, the Supreme Court can ultimately resolve those issues, but unless Kansas and its sister states succeed, the justices won’t get that chance for a long time.

Section 212(f), which “exudes deference to the President in every clause”, is just words on paper in the border context until some court says otherwise. If Kansas gets its way, our Highest Court may get that chance.