I am not a fan of President Trump’s controversial Executive Order on immigration. I think it contains good provisions, such as prioritizing the resettlement of religious-minority refugees who are at the greatest risk of being killed in their homelands, and the global visa requirements review is a fine idea. However, I considered its chaotic rollout and broad application to green card and SIV-holders extremely reckless, and I think suspending the Syrian refugee program without first establishing an alternative is unconscionable. “America First” is good insofar as it recognizes that the primary responsibility of a nation is to its citizens (not the global community), but this must not descend into an amoral realpolitik that repudiates our secondary (but nevertheless real) responsibilities to do what we can to help the world’s most vulnerable non-citizens.
However, a great many people have already weighed in on the substance of Trump’s Executive Order, and I don’t have much to add to the global conversation. On the other hand, a friend asked me the other day whether Trump’s EO is legal, and I think that that discussion has been badly neglected by almost everyone.
Those who are talking about the law are largely talking nonsense. While protesters chant that the order is “unconstitutional” simply because it “advances prejudice” (as one Facebook commenter put it to me), a surprising amount of the discussion by the Great and Wise has revolved around loose comments by private citizen Rudy Giuliani about a so-called “Muslim ban,” which critics have tried to tie to the EO and thus to the Establishment Clause. Even if they succeeded in this, it’s a thin case against the EO’s legality, since potential immigrants (who are not persons under U.S. jurisdiction) have very few constitutional rights in the first place. In light of the fact that many of President Trump’s harshest critics positively applauded President Obama’s actually unconstitutional orders on immigration and health care, one suspects there may be some motivated thinking at work here.
Right-wing defenses of the EO, by contrast, have relied (in my opinion) far too heavily on the President’s constitutional foreign-affairs power, which does give the President broad authority to act in the national interest, but with the caveat that Congress can severely limit it by statute.
Congress has done just that. The legality of the EO is not primarily a constitutional issue, but a statutory one. The best attack on the EO so far, proposed by David Bier for the New York Times and expanded on by Patterico at RedState, revolves around the statutes in question, and attacks the EO solely on the basis of those statutes. My favorite Congressman, Justin Amash, has endorsed these attacks.
However, those attacks are mistaken. Solely on the basis of the statutes in question, it is clear that the EO is perfectly legal.
Before getting started, I want to quote the start of Patterico’s article, because his disclaimer applies equally to me:
I am not an immigration lawyer [nor indeed a lawyer of any kind] and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument, and I thought a post that analyzed the arguments… might be useful to people interested in the topic.
So, with my layman’s credentials established, what are the statutes in question here?
In 1952, Congress passed a law, the Immigration and Nationality Act, that contained a provision now enshrined in the US Code at 8 USC 1182(f). That provision says, in relevant part:
(f) Suspension of entry or imposition of restrictions by President
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.
This is, as you can see, an extraordinarily broad grant of unilateral power to the President to suspend immigration by anyone for any reason at any time. As we’ve seen, some people contend that the President has that power anyway, under Article II, I think that’s questionable; to suspend immigration, the President should receive authorization from Congress. But Congress gave the President that power anyway, in this very provision. Was that a good idea? Debatable. In the age of Trump? Definitely not. But it’s still the law. Plenty of bad ideas are still law.
Unsurprisingly, 1182(f) is the very provision President Trump’s EO relies on for its authority. The Executive Order (full text here) specifically proclaims, in Sec. 3(c), that entry from the seven involved countries “would be detrimental to the interests of the United States” in order to meet the precise verbal requirements of this statute, and it provides an explicity citation to 1182(f).
Opponents of the EO point to a later law, the Immigration and Naturalization Act of 1965, which ended the American quota-based immigration system that was set up originally under the Chinese Exclusion Act of 1882.* The INA includes this provision, enshrined in the US Code at 8 USC 1152 (a)(1)(A):
(1) Nondiscrimination
(a) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
The argument by EO opponents is that 8 USC 1152(a)(1)(A) repealed 8 USC 1182(f) by implication, because the two laws contradict and 1152(a)(1)(A) is the newer law. The President did have the authority to “ban” aliens from certain countries from 1952 to 1965, but does no longer, because 1152(a)(1)(A) bans discrimination by nationality and residence. The EO discriminates based on both, so, despite the broad grant of authority under 1182(f), it violates 1152(a)(1)(A) and is therefore illegal.
It’s an interesting argument. But there are a whole lot of problems with it:
(1) The two laws simply don’t conflict. § 1152(a)(1)(A) deals with visa issuance. § 1182(f) deals with entry. These are separate categories. A restriction placed by Congress on visa issuance does not place restrictions on the President’s power (also granted by Congress) to suspend entry. It’s entirely reasonable that the U.S. would, under some circumstances, continue to recognize visas and process visa applications for the residents of certain countries while temporarily suspending their actual right to enter the United States.
Importantly, that’s exactly what the EO does. The EO doesn’t revoke anybody’s visa. It suspends entry for 90 days, pending a review of visa requirements and reciprocity agreements. It is not plausible to read a temporary, 90-day suspension of entry rights, with no revocation of existing visas, as discrimination “in the issuance of visas”. Even an indefinite suspension of entry would only questionably interact with 1152(a)(1)(A)… and the only indefinite suspension in the EO is the Syrian refugee program, which all agree is not even covered by 1152(a)(1)(A). EO opponents’ arguments fail primarily because they rely on a supposed conflict between two laws that do not interact at all.
(2) Even if you could plausibly read the two laws to be in conflict, the argument that 1152(a)(1)(A) implicitly repeals 1182(f), in whole or in part, is likely to run aground in court, because it is not the only possible reading of the two laws. Courts hate implied repeal, because it creates deep uncertainty in the law as a whole. You never know for sure whether a statute on the books is in force or has been repealed by implication by some later statute you haven’t seen.
The general rule in courts is that, if a legislature intended to repeal or limit a law, they’d repeal or limit the law. If both laws are still on the books–and, in this case, they are–courts will do everything they can to reconcile them, favoring a reading where they do not conflict. Implied repeal is a last-resort method used only when laws absolutely contradict… and it more often arises when some state discovers they have on the books 1796 statute banning petticoats that everyone forgot about, not so much with major and well-known provisions of the U.S. Code. So courts are going to avoid the conflicted reading between 1182(f) and 1152(a)(1)(A) if at all possible. And rightly so: verba cum effectu accipienda sunt, folks. Since avoiding the conflicted reading is possible (more than possible, actually), 1182(f) stands as written, and the EO is legal.
(3) Even if you are, for some reason, convinced that the two statutes must be read as conflicting, 1152(a)(1)(A) still can’t be read as wholly repealing 1182(f). The most you can say is that 1152(a)(1)(A) creates a limitation: it prevents the President from suspending entry for classes of aliens on the sole basis of their nationality. But the rest of 1182(f) stands, and the President retains the authority to suspend entry for classes of aliens not covered by 1152(a)(1)(A). So, even if 1152(a)(1)(A) limits 1182(f) when it comes to nationality, 1182(f) still gives the President the right to suspend entry for, say, communists, or for people who were recently exposed to ebola. (People who have ebola are already excluded under §1182(a), but 1182(f) grants the President very broad discretion to respond to evolving health crises.)
Importantly, under 1182(f), the President may suspend entry for a class of aliens even if the class of aliens happens to bear a rationally-based relation to a nation or group of nations. That’s a dense sentence, so let me illustrate with an example. Suppose there were an ebola outbreak in Madagascar. It reaches epidemic proportions in Madagascar, causing a total breakdown in the social order, including the health care and records systems. However, being an island nation, the international community is able to contain the disease enough that it spread nowhere else. The President, fearing the spread of the infection because (with Madagascar’s government in chaos) we are unable to verify whether someone is carrying or has recently been exposed to the disease, issues a blanket proclamation under 1182(f), just like the one we suggested above: no one who has recently been in an area suffering from an ebola outbreak may enter the United States. Because of the way this breakout played out, however, this ban happens to be exactly equivalent to a ban on people from Madagascar. Nevertheless, it seems clear that the President is well within his rights, under 1182(f), to enact this suspension anyway. The ebola “ban”, while accidentally corresponding with nationality, has a rational basis quite apart from nationality. If the epidemic spreads beyond Madagascar to other regions, the President’s suspension will expand accordingly; if the epidemic in Madagascar ends, the suspension will evaporate on its own. Clearly, 1182(f) permits this, and 1152(a)(1)(A) poses no obstacle. It would be a strange thing indeed if 1152(a)(1)(A) forbade us to respond to an ebola epidemic in Madagascar (because it is a country), but suddenly permitted us to respond if the epidemic shrank to just a two or three provinces of Madagascar!
By the same token, the U.S. discriminated against visa applicants from Warsaw Pact countries during the Cold War, applying additional scrutiny and screening if not outright blocking entry. This was not because the U.S. had a problem with ethnic Russians or Latvian nationals, but because the U.S. had a problem with communist espionage, which tended to originate in those territories. I am unaware of any attempt to use 1152(a)(1)(A) to prevent enhanced scrutiny in these cases, because this was not discrimination on the basis of nationality.
Likewise, Trump’s EO does not suspend entry on the basis of nationality. It has a perfectly rational basis that has nothing to do with nationality: the EO simply suspends entry from areas that have been designated by Congress and the Secretary of Homeland Security as “areas of concern” due to an elevated risk from terrorist infiltration. The current list of “areas of concern” happens to include the entirety of seven countries: Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, and so alien entry from those nations is temporarily suspended.
There is no prejudice against, say, Iraqis implied by this order. If Iraq is able to get its terrorism problem under control to the point where Congress agrees to remove them from that list, the EO will automatically cease to apply to them. If the reach of terrorist migration expands, so too will the list, and so too will the countries covered by the EO, whether that means temporarily barring aliens from Lebanon or from Canada. The terror threat the President is responding to is, legally speaking, no different from the ebola threat we considered above, and it is not a nationality.
Some have suggested this argument renders 1152(a)(1)(A) a “virtual nullity.” This is silly. 1152(a)(1)(A) was designed to bar the executive from decreeing, “The U.S. is revoking all Chinese visas, because we have too much Chinese labor, they are overwhelming our colleges with their smart kids, and their culture is too different from ours.” It has accomplished this goal. If President Trump issued an EO that said that or anything like it, it would be illegal. That this is unimaginable today is a sign of how completely 1152(a)(1)(A) and the rest of the 1965 Act has succeeded in overthrowing our old model of immigration based on racial quotas. That this law has succeeded as written, however, is not an excuse to adopt a new, radically broader meaning for it that bars the President from acting to protect the nation from actual foreign threats under 1182(f) just because those threats happen to coincide with somebody’s national borders.
The Cato Institute points at a 1995 case, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, in which the government tried to allege a rational basis for discriminating in the issuance of visas on the basis of nationality and was swatted down by the D.C. Circuit Court of Appeals. But that case is clearly distinguishable from the Trump EO: in LAVAS v. State, the government was explicitly discriminating on the basis of nationality and claimed a rational basis for doing so. In this case, the issuance of visas is not implicated, but, even if it were, the government is claiming authority to discriminate against a class of immigrants on a rational basis that is established independent of and unrelated to nationality, which only coincides with a set of nations because of other decisions made by Congress and the Secretary of Homeland Security, and which could change to a different set of nations (or, indeed, non-nations) at any time. LAVAS has no bearing here.
(4) Even if you decide that all of the above is so much sophistry dedicated to hiding an act of discrimination on the sole basis of nationality (and I’d be awfully interested in hearing a legal argument that gets you there**), the argument that the EO is illegal still falls apart. It fell apart as soon as the EO’s opponent embraced the doctrine of implied repeal, way back at the beginning. See, the whole case against the 1952 law (§ 1182(f)) depends on saying that the 1965 law (§ 1152(a)(1)(A)) supersedes it and bars nationality-based discrimination.
But, in 2015, Congress passed a law (the Consolidated Appropriations Act) that expressly created discrimination in the visa issuance process for residents of Iraq and Syria (by name) and the other “countries of concern” (by incorporation). The text of this provision is at 8 USC 1187(a)(12). That this discrimination did not bar issuance of visas, but merely created new visa-based barriers to entry for residents of the countries in question, is immaterial, at least under the legal theory advanced by EO opponents: § 1187(a)(12) is discriminatory in the same way, and against the same targets, as the supposedly illegal EO itself. So if the 1965 law repealed the relevant parts of the 1952 law to make discrimination on the basis of nationality (even coincidentally) illegal, as the EO’s opponents contend, then the 2015 law surely repealed the relevant parts of the 1965 law, and discrimination on the basis of nationality — at least against those countries — is legal again!
Patterico attempts to distinguish 1187(a)(12) from the EO itself by saying that Congress has the authority to create an exception to its own rule in 1152(a)(1)(A), but the President does not have that authority under 1182(f). This argument would be much more persuasive if it were not prefaced by an extremely broad version of implied repeal. Patterico first contends (with 1152(a)(1)(A)) that a new provision can limit an unconnected existing provision of law and eviscerate the use of the existing provision–even when the use has a rational basis that is independent of the putatively repealing statute. If implied repeal is that broad, then I think it’s hard to keep 1152(a)(1)(A) alive in the face of the newer 1187(a)(12). I don’t doubt Patterico’s motives, but I also don’t think it’s consistent for his theory of implied repeal to be hugely, super-textually broad with respect to 1152(a)(1)(A) and then suddenly narrow with respect to 1187(a)(12).
In conclusion, in order to hold that the EO exceeds the President’s authority, you have to contort 1152(a)(1)(A) to void the President’s plainly-granted power under 1182(f), you have to somehow convince a court that this is the only possible interpretation of the two laws, you have to contort your interpretation of the EO to read it as discrimination on the sole basis of nationality rather than on the perfectly justifiable rational basis of preventing terrorist infiltration from areas (nations or not) where the threat is higher, and you have to preserve 1152(a)(1)(A) from being voided by 1187(a)(12) the same way you just had 1152(a)(1)(A) void 1182(f). There are legal theories that can do one of these, maybe two. (I disagree with those theories, but they exist.) But to do all four, I think you have to contradict yourself at some point.
The President’s power to limit immigration is absolutely sweeping. (His power to expand it, conversely, is severely limited.) People are free to say that President Trump’s EO is a stupid, terrible idea that should be rescinded, in whole or in part, immediately–and Congress, incidentally, could cancel the EO by passing a law that explicitly takes this power away from Trump–but saying that the EO is currently unlawful is, I think, mistaken. I base this judgment solely on the statutes involved, not any inferences about presidential power drawn from Article II or elsewhere.
For the time being, the EO’s enforcement has been partially stayed by multiple courts. This is a correct decision. Given the great harm this EO could inflict on plaintiffs, they are entitled to judicial review of the action taken against them. Judicial review takes time, and that requires a stay of the EO. However, I am confident that the EO will ultimately be upheld by the federal judiciary, because the statutory authorization for the President is clear.
Certainly the President’s claim to be able to enact this EO is infinitely stronger than President Obama’s claim to be able to enact his unlawful DACA/DAPA programs, yet many people protesting the EO were staunch defenders of President Obama’s way-less-legal executive actions. It is a serious and growing problem in our Republic that people increasingly believe that strongly disagreeing with a law or policy makes it “illegal” or “unconstitutional.” It does not. In a Republic, our duty is not to delegitimize bad laws; that places us on a short road to the end of the rule of law and the dawn of rule by men. Our duty, rather, is exercise our rights to vote and petition the government so that bad laws are changed.
As always, I welcome rebuttals from anyone–especially actual lawyers.
*SIDEBAR: if I were a Congressman, I would occasionally name my bills with the wrong year, just to mess with people. “Vote for the Internet Neutrality Act of 1741, fellow Congressthings!”
**Conor Friedersdorf has a good argument for why the voters should regard the EO as potentially racially motivated. He’s right. But his argument is political, not legal. Courts cannot read racial animus into an Executive Order without strong evidence from within the text that there is no other justification for it.
Comments were open as of yesterday. Grumble.
The ban is facially unconstitutional and prohibited by the INA. The ban targets legal permanent residents (LPRs). They were in fact detained at airports. The 9th Cir. didn’t buy the government’s fallacious assertion that LPRs would not be targeted because they indeed were targeted and detained. The 1996 IIRIRA amendment to the INA very specifically states in § 101(a)(13), “An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws…” (with exceptions and limitations not applicable here because this is a blanket ban).
LPRs also have certain due process rights under SCOTUS precedent in Chew, Plasencia, etc. The EO is absolutely and inarguably unconstitutional as applied to LPRs. “Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return.” Landon v. Plasencia, 459 U.S. 21, 29 (1982). “[A] resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country. ” Id. at 30-31 (citing Kwong Hai Chew v. Colding. 344 U. S. 590 (1953)). Again, they were targeted and detained, and the EO has not been withdrawn nor amended.
Further, the invalidation and nullity of 1152 is relevant. “But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the “visa-entry” procedural distinction.” Charles Tiefer (too lazy to do full cite. Google for yourself). Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies and supercedes the 1952 INA clauses (namely 1182 is indeed limited by 1152). He further states, “[T]he 1952 law does not allow the president to remove those who are lawfully present (such as visa holders at airports).” The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues.
The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact. If he is concerned, why didn’t he ban aliens from Saudia Arabia? If an actual threat materialized based on real facts and evidence, then perhaps the EO would be legal as applied to nonimmigrant visa holders and refugees, but not to LPRs or other lawful aliens who took short trips (of which BOTH classes were indeed targeted). But that simply is not the case. To quote Chemerinksy again, “The order is also nonsensical in that foreigners from the seven listed nations killed exactly zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015, according to the Cato Institute. None of the terrorists from the 9/11 attacks or the Boston Marathon bombing or the San Bernardino shooting or the Orlando, Fla., massacre came from the seven countries listed. The home countries of those responsible were not included.” Its also important to point out that many oulets propounded Trump does business in the exempted countries, and, therefore, has personal ulterior motives in violation of the Emoluments Clauses.
Further, Trump cannot violate the blanket prohibition of the First Amendment’s Establishment Clause… ever. To quote Chemerinksy again, “Under the 1st Amendment, the government may not favor one religion over others. Although Trump’s executive order does not expressly exclude Muslims, that is obviously its purpose and its effect as it bars entry to individuals from predominantly Muslim countries. It also instructs Homeland Security, after the 120-day period, to prioritize refugee claims ‘made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’ ” Trump’s very own words and promises were to instate a Muslim ban. It does not matter whether the INA specifically lists religion in its nondiscrimination clause. Under the Supremacy Clause, the Constitution is the supreme law of the land, and no statute can contravene it.
The ban is facially unconstitutional and violates the INA. Congress has plenary power over immigration, including power over the borders, pursuant to Art. I, s. 8, cl. 4. SCOTUS has recognized this many times. “[T]he right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation; that the POWER OF CONGRESS to expel, like the power to exclude, aliens or any class of aliens from the country. . .” (emphasis added) Wong Win v. US and Plyer v. Doe. “By the Constitution of the United States, CONGRESS WAS EMPOWERED ‘to establish an uniform rule of naturalization’ . . .subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” (emphasis added) United States v. Wong Kim Ark (discussing reentry into US).
First and foremost, the ban unconstitutionally targets and deprives legal permanent residents (LPRs) of their rights. The fact is LPRs were already targeted and detained. The 9th Cir. was unpersuaded by the government’s fallacious assertion that LPRs would not be targeted because they indeed were targeted and detained, The EO has not been rescinded nor amended as it stands.
LPRs have a staturory right to re enter the country. The 1996 IIRIRA amendment to the INA very specifically states in 8 USC § 1101(a)(13), aka INA 101(a)(13), “An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws” (with exceptions and limitations not applicable here because this is a blanket ban). Permanent residents are automatically admitted to the U.S. if none of the enumerated circumstances apply. “In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as ‘removal.’ See 8 U. S. C. §§1229, 1229a; (citation omitted). Congress made ‘admission’ the key word, and defined ‘admission’ to mean ‘the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’ §1101(a)(13)(A).” Vartelas v. Holder, 132 S.Ct. 1479, 1484 (2012). (The IIRIRA incorporated and expanded upon the Fleuti doctrine). Also note 212(f), also codified at 8 U.S. Code § 1182(f), is NOT a listed exception to INA 101. The EO facially violates LPRs statutory right to travel abroad and not be subject to “entry” under the IIRIRA.
LPRs also have certain due process rights under SCOTUS precedent in Chew and its progeny. “[A] resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country. ” Kwong Hai Chew v. Colding. 344 U. S. 590 (1953); Landon v. Plasencia, 459 U.S. 21 (1982). “Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which an alien was indefinitely detained as he attempted to reenter the country–does not support the Government’s argument that alien status itself can justify indefinite detention. Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678 (2001). SCOTUS ruled in INS v. St. Cyr that the IIRIRA does not deny LPRs ability to motion for habeas corpus relief pursuant to 28 USC §2241 in removal proceedings (which includes exclusion for LPRs), with some extra restrictions at the border. As stated in the above paragraph, exclusions are not distinguishable from removals as applied to LPRs. LPRs are entitled to due process of the law under the 14th and 5th Amendments. See Yick Wo v. US ad Wong Wing v. US. The EO unconstitutionally and indiscriminately strips all LPRs of these due process hearings with a blanket ban and detention because LPRs are still entitled to the same rights as if they are US soil, with certain exceptions applied on ad hoc bases, pursuant to the INA, federal law, and SCOTUS precedent.
The invalidation and nullity of sec, 1152 is relevant. “But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the “visa-entry” procedural distinction.” Charles Tiefer. Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies and supercedes the 1952 INA clauses (namely 1182 is indeed limited by 1152). He further states, “[T]he 1952 law does not allow the president to remove those who are lawfully present (such as visa holders at airports).” Again, exclusion and deportation of LPRs fall under the same proceeding in which LPRs must be provided hearings.
The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues. There must still be a fact based, nondiscriminatory reason for a country to be targeted. “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Washington v. Trump, too lazy to look up full cite (9th Cir. 2017),
Under sec. 1187, Congress exercised its plenary power and decided to be discriminatory in the vetting process for visas from specified countries. The nondiscrimination clause of sec. 1152 is still in effect and applicable with the narrow exceptions provided in 1187. Sec. 1187(a)(12)(D) requires specific considerations, including aliens from other areas “of concern” to present a “credible threat.” To quote the 9th Cir: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” POTUS does not have the power to change or extend the scope of the law due to separation of powers. The EO fails the 1187 requirements, and Congress’s ability to discriminate was not conferred upon the executive. And again, this does not apply to LPRs, but the EO certainly does and has.
The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact. If he is concerned, why didn’t he ban aliens from Saudia Arabia? If an actual threat materialized based on real facts and evidence, then perhaps the EO would be legal as applied to nonimmigrant visa holders and refugees, but not to LPRs absent evidence to the contrary and hearings. To quote Chemerinksy again, “The order is also nonsensical in that foreigners from the seven listed nations killed exactly zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015, according to the Cato Institute. None of the terrorists from the 9/11 attacks or the Boston Marathon bombing or the San Bernardino shooting or the Orlando, Fla., massacre came from the seven countries listed. The home countries of those responsible were not included.” Again, the government offered no evidence. Its also important to point out that many outlets propounded Trump does business in the exempted countries, and, therefore, has personal ulterior motives in violation of the Emoluments Clauses.
Further, Trump cannot violate the blanket prohibition of the First Amendment’s Establishment Clause… ever. To quote Chemerinksy again, “Under the 1st Amendment, the government may not favor one religion over others. Although Trump’s executive order does not expressly exclude Muslims, that is obviously its purpose and its effect as it bars entry to individuals from predominantly Muslim countries. It also instructs Homeland Security, after the 120-day period, to prioritize refugee claims ‘made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’ ” Trump’s very own words and promises were to instate a Muslim ban and the EO makes clear he is promoting Christianity. It does not matter whether the INA specifically lists religion in its nondiscrimination clause. Under the Supremacy Clause, the Constitution is the supreme law of the land, and no statute can contravene it.
From the 9th Cir: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266- 68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).”
I also just found that a U.S. citizen was detained and illegally denied entry based on the travel ban due to discrimiation based on his last name. The agents told him he was seeking admission. Now try to tell me that’s constitutional. http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban
What a wonderfully detailed response! Thank you! You should blog yourself.
At the time I wrote this, it was unclear whether the EO applied to lawful permanent residents. I concluded it did not, and so left them out of the analysis. The Trump Administration turned out to be less prudent than that. I agree with you (and with the courts) that the EO is unlawful as applied to LPRs, for at least some of the reasons you stated.
This has pretty much killed the EO for the time being, and I’m fine with that. Our argument is now entirely academic — at least until a new EO is issued.
“I also just found that a U.S. citizen was detained and illegally denied entry based on the travel ban due to discrimiation based on his last name. The agents told him he was seeking admission. Now try to tell me that’s constitutional.”
I won’t! But I don’t see what it has to do with the EO, since Mr. Bikkannavar was traveling from Chile to the United States and is a citizen.
“The admin did not follow the necessary statutory scheme for visas revocation as laid out in the United States Code.”
Yes, this also happened after I wrote my post, and I condemn any violations of the proper procedures as well. Indeed, I do not believe Sec. 1182(f) grants the Administration the *authority* to permanently revoke visas (rather than temporarily bar entry), as the Administration appeared to be trying, but I have not studied the procedure in detail and am not certain.
On several other matters, I think you are mistaken. You cite Charles Tiefer to the effect that:
“But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the ‘visa-entry’ procedural distinction.”
On the contrary, I think my epidemic example makes a good case for why Congress might want to make *precisely* that distinction. Charles Tiefer may not be able to find a rational basis for the procedural distinction, but the rational basis nevertheless exists. And Charles Tiefer must meet a very high bar indeed — much higher than “I can’t see why Congress would want to do that” — if he wants a court to buy into an implied-repeal theory of Sec. 1182(f).
“Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies”
“Even” Erwin Chemerinsky? Of course Chemerinsky believes that: he believes whatever the Democratic National Committee tells him to believe, changing that belief whenever he wants. See, for example, his flip-flops on judicial filibusters and the advice and consent clause, or, for that matter, his defense of the Obama Administration’s immigration executive actions (a defense that is plainly incompatible with the one he presented in the Times. I am incapable of taking Chemerinsky seriously as an authority on anything.
“Also the D.C. Cir. case you cited has a negative reporting history on Westlaw due to the 1996 Amendments to the INA.”
I didn’t cite that case. *Opponents* of the EO (the Cato Institute) cited it, and I merely responded to their citation. So if it’s been gutted anyway, so much the better for me. 🙂
“The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues.”
I didn’t! Congress has concluded that Iraq and Syria are “countries of concern,” meaning any or all of:
* (1) the aliens from those countries have an elevated likelihood of posing a credible threat to the United States
* (2) a foreign terrorist organization (such as ISIS) has a significant presence in the country
* (3) the country is a safe haven for terrorists.
Secretary of Homeland Security Jeh Johnson (an Obama appointee) made the same determination about the other countries in the EO, using authority granted under 1187(a)(12)(D)(ii). The United States government, using both direct and delegated authority from Congress, *explicitly* authorized discrimination against aliens from such “countries or areas of concern” based on rationally and legally cognizable facts about the elevated terrorism threat in those nations, which the Secretary of Homeland Security documented at the time.
“‘The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.’ Washington v. Trump”
Whether any alien from any of the countries named in the order has *actually perpetrated* an attack in the United States is irrelevant, any more than it is relevant whether a resident of Madagascar has *actually infected* a person in the United States with ebola. It suffices, for the purposes of the law, that there is an elevated risk.
“The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact.”
If you believe this is true, then Sec. 1187 and Jeh Johnson are at fault, not President Trump. President Trump made no findings of fact in the EO; he merely acted on findings of fact already made by the previous administration. (Those findings were, incidentally, made within the “within 60 days” window you cite.)
Insofar as Sec. 1187 contradicts Sec. 1152, Sec. 1187 is the more recent law, Sec. 1187 controls, and Sec. 1152 poses no obstacle to the EO (or to Pres. Obama’s immigration actions involving the same countries).
On the other hand, insofar as Secretary Jeh Johnson’s determination that the “countries of concern” are terror threats was “not grounded in any fact,” the Obama Administration’s suspension of the visa waiver program in those countries was unlawful to the same extent as Trump’s EO. As far as I know, no one is actually making this contention, but, if you plan to argue that Trump’s EO unlawfully discriminates on the basis of national origin, you have to make the same argument about the Obama Administration’s visa waiver program. If you’d like to go there, I will gladly dig up the evidence to defend the Obama Administration’s actions here.
“If he is concerned, why didn’t he ban aliens from Saudi Arabia?”
Among other reasons, because his authority to do so was much less clear than for the countries actually affected. Sec. 1187 gave Trump clear authority under Sec. 1182(f) to bar aliens from the Sec. 1187 “countries of concern,” with Sec. 1152 notwithstanding because the ban is on grounds unrelated to national origin. If Trump tried to incorporate Saudi Arabia into the EO, without a proper finding of fact by the Secretary of Homeland Security (or Congress), then Trump would risk exceeding his authority.
“has personal ulterior motives in violation of the Emoluments Clauses.”
This is not how the Emoluments Clause works. Trump flirts daily with violating the Emoluments Clause, a very dangerous situation for him legally, but “ulterior motives” is most certainly beyond the clause’s reach.
As for the Establishment Clause, I agree (obviously) that no officer of the United States may violate it, but I do not believe that it is violated by the text of this EO. You appear to agree with that, since none of your Establishment Clause arguments are related to the text of the EO. You argue instead that there was an anti-Muslim discriminatory intent in the EO. This is, I admit, a justiciable question under current U.S. precedent, but it quickly becomes a dispute over evidence rather than a dispute over law. I, at least, don’t think there is sufficient evidence to show a discriminatory intent the EO, or at least not a discriminatory intent that vitiates the rational non-discriminatory intent that justify the EO — but we are now in territory that is perhaps best left to a jury.
Thanks for the reply. I apologize I attributed the wrong D.C. case to you. I must have gotten your site confused with another that indeed tried to use this overturned case.
As far as the nondiscrimination clause, I’ll just post this article that also states it limits the delegated authority of 1182(f). http://yalejreg.com/nc/see-the-sights-of-terminal-4-a-reply-to-section-1182f-enthusiasts-by-ian-samuel/ . “The explicit instructions in a State Department cable stated clearly that “visas may not be issued” to nationals of the seven listed countries, and indeed directed the revocation of existing, previously-issued visas. ” They did very plainly try to revoke and restrict visa issuance based on nationality. Your interpretation renders 1152 inoperable and useless. The exception swallows up the rule. That just isn’t logical nor consistent. What’s the point of the nondiscrimination clause if its so easily circumvented? LAVAS is on point regarding the interplay between the clauses. They are not independent of each other. In any case, we have to wait and see if a court decides to go down this path and decide.
And low blow to Chemerinksy. He is one of the nation’s top constitutional scholars, and his opinions are highly regarded, even by SCOTUS. Not a valid argument to claim he is follows the “liberal agenda.” That actually discredits your argument.
Congress indeed can discriminate when passing immigration laws, but that ability lies within their plenary power explicitly granted by the Constitution. To say that POTUS can, when specifically the INA was amended to remove discrimination, does not logically follow. There is no nexus. Congress did not delegate absolute authority. I also want to reiterate the SCOTUS has held the use of the word “may” proves delegated authority is limited. See cite in previous post. However, even Congress is limited to a rational basis in its discrimination. Mathews v. Diaz, 426 U.S. 67, 82-83 (1976). Again the 9th Circuit pointed out the government gave no facts or evidence to support its position even a rational basis. The failure to include countries that were actually implicated with terrorist ties, such as Saudi Arabia, shows there is not real rational basis. It further shows his motiviation was personal and to enhance business ties with certain countries, such as Saudi Arabia, which is an abuse of power and a violation of the Emoluments Clauses, if is business relations indeed are continuing. Which eff if we know since he won’t release his records to Congress. I see a case overlap here.
Regarding the Establishment Clause violation, the 9th Cir. rightfully considered Trump’s words, just as the 5th Cir. rightfully considered Obama’s words when he issued his unconstitutitional immigration EO. The violation does not have to be in plain text, as the precedent has held. Intent and impact are enough, which is the same for all types of discrimination cases. Its rare sophisticated companies, for example, are stupid enough to actually put their discriminatory intent in writing.
Lastly, the comparison to Obama’s restriction is improper. They are extremely different. I don’t have to bother to create arguments, as it has been done many times already as to why the two are inherently and fundamentally different. Of important note is an actual terrorist situation materialized before Obama instituted his restrictions, and he never targeted LPRs. He enhanced the vetting process. http://www.businessinsider.com/big-differences-between-trumps-immigration-ban-obamas-2011-policy-2017-2/#scope-1
http://www.politifact.com/truth-o-meter/statements/2017/jan/30/donald-trump/why-comparing-trumps-and-obamas-immigration-restri/
https://www.washingtonpost.com/news/fact-checker/wp/2017/01/29/trumps-facile-claim-that-his-refugee-policy-is-similar-to-obama-in-2011/?utm_term=.6bdaa733da34
I could keep going with the citations, but its overkill.
And the US citizen being unlawfully detained is an alarming example of how CBP is discriminating against Muslims, whether they are citizens or not and whether they are actually even Muslim or not due to their last names. Clearly CBP is out of control, but I believe the EO has emboldened them to target Muslims.