Selling the American Dream: Constitutional Limits of the Gold Card Program

On September 19, 2025, the Trump administration announced the Gold Card Program, a way to expedite eligibility for an immigration visa for those who can provide a significant financial contribution. More specifically, an individual must donate at least one-million dollars, while a corporation can donate two-million dollars on behalf of an individual. The donations go towards a separate fund to “promote commerce and American industry” and relieve the national debt. On December 19, 2025, President Donald Trump stated the program had reached $1.3 billion in sales. 

However, the Gold Card Program has been widely challenged, and the most notable lawsuit is American Association of University Professors v. Department of Homeland Security (2026), an ongoing case in which the plaintiffs argue that the Gold Card Program violates the Administrative Procedure Act (APA), which dictates how U.S. government agencies propose and establish regulations, issue licenses, and handle administrative litigation. Specifically, they contend that the program exceeds the authority granted by Congress under the Immigration and Nationality Act (INA), is arbitrary and capricious, and was implemented without the required notice-and-comment rulemaking process. The plaintiffs further allege that the agency acted ultra vires, meaning beyond the scope of its lawful authority. They seek declaratory and injunctive relief to halt the Gold Card Program, along with an award of attorneys’ fees. The AAUP’s claim should succeed because the Gold Card Program fails to provide a clear connection between its structure and the government’s stated economic goals needed under the APA and exceeds the authority delegated by Congress under the INA.

Immigration law has historically fallen under the plenary power doctrine, meaning that the federal government has the “fundamental sovereign power” to admit or exclude non-citizens, a doctrine established in the case Chae Chan Ping v. United States (1889). The Supreme Court later reaffirmed this doctrine in Kleindienst v. Mandel (1972), emphasizing that decisions regarding the admission of non-citizens are largely entrusted to the political branches and are subject to limited judicial review. Because of this, courts grant heavy judicial deference to Congress and the President on matters concerning immigration, foreign affairs, and national security. However, when the government creates an immigration program through an agency, the APA can still allow courts to review whether the agency acted within the authority given to it by Congress and whether its actions were arbitrary and capricious. Therefore, while the plenary power doctrine requires courts to give the government broad deference in immigration matters, it does not completely protect the Gold Card Program from review under the APA.

When immigration matters are reviewed, courts will generally uphold government action as long as it is rationally related to a legitimate government purpose. In Fiallo v. Bell (1977), the Supreme Court emphasized the limited role of the judiciary in reviewing immigration classifications, and it reaffirmed this deferential approach in Trump v. Hawaii (2018), where it upheld a presidential immigration restriction after concluding that the policy was plausibly related to legitimate national security interests. This level of scrutiny most closely resembles rational basis review, the most lenient standard of judicial review used by U.S. courts, where the government must prove only a logical, non-arbitrary connection between its action and the goal it aims to achieve. Courts apply this standard when a challenged law or regulation involves non-fundamental rights or does not target suspect classes, which refers to classes of individuals who have been historically subject to discrimination. As wealth is not considered a suspect category, a constitutional equal protection challenge to the Gold Card Program would likely receive this deferential form of review. However, rational basis review is different from the APA’s arbitrary and capricious standard. Under the APA, courts review whether an agency acted within its legal authority and whether it adequately considered the relevant factors and provided a reasonable explanation for its decision. This means that while the Gold Card Program could have a rational connection to a legitimate government interest, it can still violate the APA if the agency lacked authority under the INA or failed to adequately explain why a wealth-based immigration program was consistent with the statutory framework established by Congress.

As argued by the AAUP, the Gold Card Program does not clearly connect to a valid immigration goal, making the program seem arbitrary and capricious. Under the Supreme Court’s decision in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (1983), an agency acts arbitrarily and capriciously when it fails to consider relevant factors, offers an explanation that runs counter to the evidence, or cannot provide a rational connection between the facts found and the policy chosen. The AAUP contends that the Gold Card Program does not serve a valid immigration objective recognized by Congress and therefore lacks a reasoned basis. Specifically, the AAUP contends that the Gold Card Program exceeds the authority granted under the Immigration and Nationality Act (INA). Through this Act, along with the Immigration Act of 1990, Congress created several categories of visas, administered by federal agencies, to encourage immigration by individuals whose admission would benefit the United States, such as the EB-1 and EB-2 visas for those with “extraordinary ability” or “exceptional ability.” Congress allotted only a limited number of each visa per year, but with the Gold Card Program, individuals who make a substantial financial contribution may gain access to these same visa categories despite not necessarily meeting the qualifications Congress established for them. Because Gold Card recipients would still count toward the limited number of available visas, the program takes visa opportunities away from applicants who meet the statutory criteria, thus exceeding the authority Congress delegated under the INA. The Gold Card Program would therefore effectively change the qualifications for the visas Congress established, raising a separation of powers concern by giving the executive a role in changing immigration rules that Congress itself established. Thus, the Gold Card Program is not only arbitrary and capricious under the APA, but also exceeds the authority Congress gave the executive branch under the INA.

However, it may be argued that the Gold Card Program serves a legitimate governmental interest by generating funds to “promote commerce and American industry” through reducing the national debt. While this rationale may serve a legitimate economic purpose by attracting capital, the government must still show that the program is reasonably connected to that purpose under the APA. For example, the EB-5 Immigrant Investor Program allows foreign nationals to obtain a U.S. green card by investing in a new commercial enterprise that benefits the U.S. economy. The program requires a substantial capital investment and must create or preserve at least 10 full-time U.S. jobs. In this framework, the admission of immigrants goes further to directly ensure that capital is being channeled into measurable domestic economic outcomes. By contrast, the Gold Card Program does not require that funds be invested in any U.S. business, does not mandate job creation, and does not specify how the contributions will be deployed beyond the general objective of reducing the national debt. This lack of a clear mechanism is significant under the APA because, under State Farm, the Supreme Court held that an agency must provide a rational connection between the facts it considers and the policy it chooses. Here, the government may identify promoting commerce and American industry as the goal, but the program does not explain how allowing individuals to obtain immigration benefits in exchange for financial contributions will actually achieve that goal. Therefore, even if promoting commerce and reducing the national debt are legitimate government interests, simply stating those interests does not necessarily provide the reasoned explanation required under the APA.

Ultimately, the federal lawsuit filed by the AAUP could clarify the limits of executive power when an agency attempts to reshape a system that Congress has already defined. Although the executive branch has historically been granted broad authority over immigration through the plenary power doctrine, that authority does not exist independently of the laws Congress has enacted. Under the APA, the executive branch must remain within the authority delegated by Congress as well as provide a reasoned explanation for its actions. However, while the government’s stated interests in promoting commerce, American industry, and reducing the national debt may provide a policy rationale for the program, they do not adequately explain how they will advance these goals. Thus, the AAUP should succeed in establishing that the Gold Card Program is arbitrary and capricious under the APA, exceeds the authority delegated by Congress under the INA, and raises significant separation of powers concerns. 

Edited by Leah Druch.

This piece was reviewed and finalized by Gabi Fabozzi, Qizhen (Kiara) Ba, and Jasmine Lianalyn Rocha.