Patterico's Pontifications

1/28/2017

Is Trump’s Executive Order on Immigration Illegal? Signs Point to “Yes”

Filed under: General — Patterico @ 11:00 am

There is good reason to cheer the policy behind the executive order on immigration signed yesterday by President Trump. One need only consider the continual problems European countries are having assimilating refugees — and the likelihood that ISIS is sending sleeper terrorists among them — to be skeptical of a policy that would admit tens of thousands of these folks within our borders. One suspects that the Obama administration did not do enough to ensure that they would be properly vetted.

But is the order legal?

That’s another question entirely, and this op-ed makes a good argument that it is not:

President Trump signed an executive order on Friday that purports to bar for at least 90 days almost all permanent immigration from seven majority-Muslim countries, including Syria and Iraq, and asserts the power to extend the ban indefinitely.

But the order is illegal. More than 50 years ago, Congress outlawed such discrimination against immigrants based on national origin. . . . The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”

Trump would likely point to a law that says he can determine certain aliens are detrimental to the country, but the writer says that doesn’t wash:

Nonetheless, Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president the ability to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States.

But the president ignores the fact that Congress then restricted this power in 1965, stating plainly that no person could 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 only exceptions are those provided for by Congress (such as the preference for Cuban asylum seekers).

. . . .

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

I’d be open to reading a contrary argument, but this one looks pretty convincing.

If no convincing counterargument can be mounted, this order will still perform a service: identifying hypocrisy. A lot of Republicans complained about Obama’s executive overreach. This is where we find out which of those critics were sincerely concerned about the separation of powers and the rule of law . . . and which ones were just cheap partisan hacks who didn’t like Obama.

I suspect a distressingly large number will fall into the latter category, unfortunately.

Me, I’m with Charles C.W. Cooke:

Congress is largely free from judicial interference in the realm of immigration, so it’s chosen to give up its powers to the executive.

— Charles C. W. Cooke (@charlescwcooke) January 28, 2017

I find that extraordinary. And—and, no, I don’t care who the president is—I think it needs to be reversed as soon as is possible. Fin.

— Charles C. W. Cooke (@charlescwcooke) January 28, 2017

If the order is illegal — and I stress that one cannot reach a firm conclusion about that from one op-ed — it should be condemned by anyone in Congress who still cares about limiting executive overreach. That group includes Senator Mike Lee, Representative Justin Amash, and — for the next four years — Democrats.

Then they should craft their own legislative measure, which should look a lot like the one signed by Trump yesterday . . . with this exception: its legality will be beyond debate.

UPDATE: Here is Andrew McCarthy arguing against the op-ed. I’m not totally convinced by McCarthy’s argument, but it will take a new post to explain why.

[Cross-posted at RedState and The Jury Talks Back]

Comments (175)

175 Responses to “Is Trump’s Executive Order on Immigration Illegal? Signs Point to “Yes””

This NYT piece was penned by someone from Cato, predictably fulfilling the “libertarian” role as the Left’s house slave on immigration.

I’ll leave it to legal minds to has this out, but we’re learning very quickly who are friends are.
Jared Nelson (83388d) — 1/28/2017 @ 11:13 am
i think we should err on the side of not flooding our towns and cities with bloodthirsty terror immigrants like how germany did
happyfeet (28a91b) — 1/28/2017 @ 11:23 am
Didn’t Carter ban Iranians during the hostage crisis?

Why is that not precedence?
ThOR (c9324e) — 1/28/2017 @ 11:23 am
If the President finds a “clear and present danger” to national security, I would be surprised if he cannot issue an interim order until legislation can be written.

Given the language cited (“discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.”) he could just go back to saying “No Muslims.” Is that what you want?

He could also bar ideologies. After WW2, German immigrants were barred if they were Nazi Party members (unless we wanted them in particular). We could bar fundamentalist Islamic sects as ideologies incompatible with American values. That they couch their hatred for pluralistic society in religious terms isn’t meaningful.

He could also bar all permanent entry for a time, allowing only short visits with a return ticket required. Again, not what you want but what you might force.
Kevin M (25bbee) — 1/28/2017 @ 11:26 am
From the op-ed:

In the most commonly cited case, President Jimmy Carter barred certain Iranians during the 1980 hostage crisis, but the targets were mainly students, tourists and temporary visitors. Even then, the policy had many humanitarian exceptions. Immigrants continued to be admitted in 1980.
Patterico (115b1f) — 1/28/2017 @ 11:26 am
Didn’t Carter ban Iranians during the hostage crisis?

But Carter wasn’t a racist.

Oh. Wait. http://www.sfexaminer.com/jimmy-carters-racist-campaign-of-1970/
Kevin M (25bbee) — 1/28/2017 @ 11:27 am
Given the language cited (“discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.”) he could just go back to saying “No Muslims.” Is that what you want?

I want the law to be followed.
Patterico (115b1f) — 1/28/2017 @ 11:28 am
He could also bar all permanent entry for a time, allowing only short visits with a return ticket required. Again, not what you want but what you might force.

“you”
Patterico (115b1f) — 1/28/2017 @ 11:29 am
and didn’t food stamp discriminate the holy poop out of the christian syrians in favour of doing the nasty murderous muslim terrorist ones all up in it so good
happyfeet (28a91b) — 1/28/2017 @ 11:29 am
Judging people by their principled alignment (i.e. content of their character) is moral, legal, and positive progress. Judging people by the “color of their skin” (i.e. [class] diversity) is not only immoral but illegal, too.
nn (e43530) — 1/28/2017 @ 11:29 am
So, using the Iranian precedent, Trump could bar males between 16 and 50 from these countries, excepting some for medical treatment or bereavement, etc.
Kevin M (25bbee) — 1/28/2017 @ 11:31 am
This appears to be the relevant language that the op-ed argues violates the law, I think:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
Patterico (115b1f) — 1/28/2017 @ 11:32 am
“you”

Second-person plural. Would you prefer “one”?
Kevin M (25bbee) — 1/28/2017 @ 11:32 am
Isn’t the knock on Trump that he’ll expand the use of executive orders in ways that are unprecedented? If Trump is simply following the lead of a Democratic president under remarkably similar circumstances and covering a similar group, I find it hard to deem this anything other than a technical breach.

By the way, did the NYT editorialize against Carters ban? I would hardly think so. The Times takes the high road only as a matter of political expedience.

Finally, let’s not forget just how much deference the SCOTUS has given the executive in recent years.
ThOR (c9324e) — 1/28/2017 @ 11:33 am
So, using the Iranian precedent, Trump could bar males between 16 and 50 from these countries, excepting some for medical treatment or bereavement, etc.

It seems that a rule like that would be more arguably legal, from what I can tell from reading his order and the op-ed.

Of course, that’s not what he did.
Patterico (115b1f) — 1/28/2017 @ 11:34 am
In any event, to stop this order someone with standing will have to get to a court and sue, the government will ask for and get a stay of any contrary ruling, and it will be months before the order is rescinded in fact. Meanwhile there will be a new law passed.
Kevin M (25bbee) — 1/28/2017 @ 11:35 am
Isn’t the knock on Trump that he’ll expand the use of executive orders in ways that are unprecedented? If Trump is simply following the lead of a Democratic president under remarkably similar circumstances and covering a similar group, I find it hard to deem this anything other than a technical breach.

Except he’s not, as I just showed with a quote that you failed to address.

I don’t know about others’ “knock” but MY concern is ANY president who exceeds his powers under the Constitution.

Frankly, I don’t give a rat’s ass whether a previous president provided a precedent if that precedent is unconstitutional, and only a rank partisan who doesn’t care about the Constitution would feel differently.
Patterico (115b1f) — 1/28/2017 @ 11:36 am
In any event, to stop this order someone with standing will have to get to a court and sue, the government will ask for and get a stay of any contrary ruling, and it will be months before the order is rescinded in fact. Meanwhile there will be a new law passed.

Your point?
Patterico (115b1f) — 1/28/2017 @ 11:36 am
Didn’t anyone tell you Yankees that the proper second-person plural pronoun is “you-all.”
ThOR (c9324e) — 1/28/2017 @ 11:37 am
Is there an implied “so he should be able to do anything he can get away with” argument in there . . . or are you making a different argument, in which case, could you spell that one out?
Patterico (115b1f) — 1/28/2017 @ 11:37 am
The Times takes the high road only as a matter of political expedience.

That’s just NOT true. The NYT always takes the high road. It’s the road marked “Democrat.”
Kevin M (25bbee) — 1/28/2017 @ 11:37 am
Second-person plural. Would you prefer “one”?

I’m talking about what the law requires. So what is “you” or “one” or whatever?

If people want to openly declare that they don’t care what the law says, then we can have an open discussion about that.
Patterico (115b1f) — 1/28/2017 @ 11:39 am
An illegal action is illegal even if a leftist, or many, say it is.
Patterico (115b1f) — 1/28/2017 @ 11:40 am
I started writing my comment before you posted. It’s not that I ignored your comment, but that I hadn’t seen it when I submitted my comment.
ThOR (c9324e) — 1/28/2017 @ 11:41 am
Is there an implied “so he should be able to do anything he can get away with” argument in there . . . or are you making a different argument, in which case, could you spell that one out?

No, there are limits. A truly unreasonable or pernicious order would be enjoined and no stay would issue.

My argument is practical, in light of current practice. The law is what the law allows and nothing more or less.
Kevin M (25bbee) — 1/28/2017 @ 11:41 am
OK.
Patterico (115b1f) — 1/28/2017 @ 11:41 am
we know from germany that isis put their murderous ninja muslim turtles all up in with the lazy-assed don’t wanna job “refugees” on purpose (to kill people)

we know this cause of there’s a ton of irrefutable evidence (documentation)

red rover red rover let like anyone that’s HELLO *not* a disgusting muslim terrorist come over
happyfeet (28a91b) — 1/28/2017 @ 11:42 am
An illegal action is illegal even if a leftist, or many, say it is.

Is an illegal action illegal if a court says “it’s OK for now”?
Kevin M (25bbee) — 1/28/2017 @ 11:43 am
No, there are limits. A truly unreasonable or pernicious order would be enjoined and no stay would issue.

My argument is practical, in light of current practice. The law is what the law allows and nothing more or less.

So if (for example) we can’t get a court to order a stop to an illegal war, you’re cool with an illegal war? President can send troops wherever he likes, to whatever extent, for whatever duration, for whatever purpose, with no declaration of war, because just try to stop him?

Or am I misreading you somehow?
Patterico (115b1f) — 1/28/2017 @ 11:43 am
Is an illegal action illegal if a court says “it’s OK for now”?

“We deny an injunction” is not equivalent to “it’s OK” — and even if that were not true, illegal is illegal, unless you want to give up your right to argue that courts get it wrong.
Patterico (115b1f) — 1/28/2017 @ 11:45 am
Kevin M:

Yes or no question:

If this order is illegal, do you care?
Patterico (115b1f) — 1/28/2017 @ 11:45 am
if our national security depends solely on brainwashed trash in congress like meghan’s slicked-up cowardly daddy we are doomedy doomedy doom doomed

hello my fellow americans

the food stamp party is very very seriously flirting with making a for reals muslim terrorist sympathizer the actual head of the DNC (!)

thank goodness Mr. Trump’s on the job keeping his eye on the horizon

scanning for danger!
happyfeet (28a91b) — 1/28/2017 @ 11:50 am
Patterico–

Give me my choice of judges and a change in the legal regime, and I’m all for (reasonably) strict adherence to the letter of the law. I agree that if you stray too far from that you have no law whatsoever — a growing reality that brought us to Trump.

However, I don’t see blind adherence to the law in the face of unexpected danger to be particularly virtuous. The situation we are in — where the overthrown regime had thrown caution to the wind to allow political grandstanding and virtue signalling and people died — requires a quick and dirty solution in the near term.

One of the reasons that courts are reluctant to slap down the executive quickly is to allow this kind of emergency reaction to take place. The problem happens when it becomes permanent without enabling legislation. The original “watch lists” were like this, with massive false positives. For a few months after 9/11 that could be tolerated. But it took almost a decade for the DHS to get around to a fix.
Kevin M (25bbee) — 1/28/2017 @ 11:52 am
So if (for example) we can’t get a court to order a stop to an illegal war, you’re cool with an illegal war? President can send troops wherever he likes, to whatever extent, for whatever duration, for whatever purpose, with no declaration of war, because just try to stop him?

How is a war illegal if no court will say it is illegal? The COURTS are the arbiters of the laws, Am I wrong in this? Do you see legality as an absolute that exists outside the legal system?
Kevin M (25bbee) — 1/28/2017 @ 11:53 am
If Trump, rather than Obama, is the bad guy, don’t you imagine that the court will find standing where before they found none and that Roberts and his allies on the left will have a change of heart about executive actions?

If there is a President who will inspire the court to rethink the direction it has been taking for decades now on the power of the executive, the President is Trump.
ThOR (c9324e) — 1/28/2017 @ 11:56 am
Section 2 – Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

DJT

easy as abc

simple as do re mi

lol suck it, terrorists

there’s a new sheriff in town
happyfeet (28a91b) — 1/28/2017 @ 11:56 am
As for this order…

Is it illegal? I think it is one of those things that could go either way. Was it legal for Reagan to fire PATCO members? He did, they sued and they lost.

Am I OK with the RESULT? Yes. For a little while. I would not be OK with this as permanent situation. BTW, does that limitation on nationality have a wartime exception? Are we required to accept immigrants from North Korea? Obviously having diplomatic relations isn’t the issue as Taiwanese and Cubans are allowed in.
Kevin M (25bbee) — 1/28/2017 @ 11:59 am
“Frankly, I don’t give a rat’s ass whether a previous president provided a precedent if that precedent is unconstitutional, and only a rank partisan who doesn’t care about the Constitution would feel differently.”

And the crowd went wild.

(at least in the room where I am…)
Dave (711345) — 1/28/2017 @ 12:00 pm
Post-9/11 Policies Dramatically Alter the U.S. Immigration Landscape

In the wake of the September 11, 2001 terrorist attacks, the U.S. government implemented a series of critical — and sometimes controversial — immigration policy measures to respond to future threats of terrorism. As we commemorate the tenth anniversary of the 9/11 attacks, it is a timely moment to reflect on the current status and the lasting legacy of those policy measures.

[…]

But while the government has abandoned or modified some of the immediate post-9/11 actions, they have generally withstood legal challenge. The courts have granted extraordinary deference to the executive branch when it invokes national security as grounds for its actions with long-lasting implications for the legal landscape affecting the rights of immigrants.

If you wait til it’s too late, it’s too late.

This is what President Trump understands.

And loves us

and he wants to keep us safe.
happyfeet (28a91b) — 1/28/2017 @ 12:07 pm
“Are we required to accept immigrants from North Korea?”

What part of “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence” is unclear?

We do not hold innocent individuals accountable for the sins of their (sometimes) murderous and criminal governments.
Dave (711345) — 1/28/2017 @ 12:08 pm
(At least not until yesterday)
Dave (711345) — 1/28/2017 @ 12:09 pm
Do you think it’s wise to use the contents of a NYT editorial on a breaking news story as the basis for attacking President Trump? Especially when the issues is as politicized as immigration?
ThOR (c9324e) — 1/28/2017 @ 12:27 pm
The original law signed by Johnson is unconstitutional.

According to this article on naturalization a 1958 court stripped congress of any ability to regulate immigration, expressed constitutional powers be damned.
We have no border. Any tom dick or harry can cross through Juarez at their leisure.
Border patrol is unconstitutional. There is no power to unvolu ntarily deport or bar any person at any time for any reason.

“The case is closed. Go to lunch!” [YouTube]
papertiger (c8116c) — 1/28/2017 @ 12:30 pm
When Trump first used the murder of innocents to his political advantage by proposing the “Muslim ban”, he was clear that he would make an exception for his “very rich” friends:

“I have a lot of friends that are Muslim and they call me. In most cases, they’re very rich Muslims, OK? They’ll come in.”

Any such exceptions in the order, or is this yet another broken campaign promise?
Dave (711345) — 1/28/2017 @ 12:31 pm
You examine his puffington host log and you find there is no effective rule he would abide by, he is trite to the point of redundancy.
narciso (d1f714) — 1/28/2017 @ 12:32 pm
Since he isn’t discriminating by race or religion, but by terrorism and lack 9f vetting, you and Cooke are incorrect.
NJRob (3a4f56) — 1/28/2017 @ 12:32 pm
He was staff director of a house subcommittee that had done nothing of significance
narciso (d1f714) — 1/28/2017 @ 12:37 pm
The article is behind the NYT paywall, so I can’t read exactly what the author has written. But my viewe of the statutory provisions that I can find that address the issue (1952 law and 1965 law) suggest to me that the author is wrong.

The provision replied upon in the Exec. Order, 8 U.S.C. Sec. 1182(f), reads:

(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.

The language the author seems to point to comes from the 1965 amendments to Title 8, specifically Section 1152(a):

(a) Per country level
(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.

First, note that the 1965 Amendments with the quoted language do not amend Sec. 1182 — but rather they amend Sec. 1152.

Second, the author — at least in the excerpted portion in the post –fails to address paragraph (B) immediately follows the quoted langauge, which reads:

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

So, even to the extent the 1965 statute deals with issues of discrimination in the ULTIMATE DETERMINATION of the issuance of an IMMIGRANT visa — i.e., not a refugee visa — it specifically excludes from its application the procedures used by the Secretary of State to process immigrant visa applications.

Here is the pertinent information from the Exec. Order that suggests to me that the OpEd (which I can’t read in its entirety) is a political, rather than legal statement of opposition:

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

So, the 90 suspension — explicitly authorized by 1182(f) — is perfectly consistent with the allowance in the “non-discrimination” language that the authority of the Sec. of State to determine the necessary procedures for processing immigrant visas.

And, any “permanent” ban while be as a result of the immigrant’s country of origin’s inability to provide the Sec. of State with the information which the Sec. of State deems necessary to process immigrant visa applications.

This is not very complicated if you take the time to actually read the statutory langauge.
shipwreckedcrew (56b591) — 1/28/2017 @ 12:47 pm
Which isn’t sufpising, since he doesn’t think moslem immigration is a problem, I guess one could construct a screen that would filter out tabligh, hizbutahir, but he’d find a way to breach it
narciso (d1f714) — 1/28/2017 @ 12:47 pm
I find it very hard to believe Mr. Trump would do an illegal order. He’s been having lawyers vet his decisions for ever and ever to where it’s second nature to him.

This is partly why he’s such a good choice for being president.
happyfeet (28a91b) — 1/28/2017 @ 12:49 pm
How is a war illegal if no court will say it is illegal? The COURTS are the arbiters of the laws, Am I wrong in this?

Yes. The absence of a judicial remedy for a legal wrong but does not make it right.
Patterico (861bfc) — 1/28/2017 @ 12:50 pm
“any permanent ban will be as a result of the immigrant’s county of origin’s inability to provide…”
shipwreckedcrew (56b591) — 1/28/2017 @ 12:51 pm
Since he isn’t discriminating by race or religion, but by terrorism and lack 9f vetting, you and Cooke are incorrect.

Nationality and/or place of residence.
Patterico (861bfc) — 1/28/2017 @ 12:53 pm
The combined effects of the 1965 amendments are that 1) no one shall be discriminated against in the issuance of an immigration visa based on nationality; BUT 2) the Sec. of State may have different requirements for different countries with regard to the procedures it employs in processing immigrant visa applications.

The Exec. Order addresses the latter issue. The concept of “extreme vetting” means a differential level of application processing depending on the country of origin of the applicant, and that is explicitly allowed in the 1965 Amendment that otherwise bars national origin discrimination.
shipwreckedcrew (56b591) — 1/28/2017 @ 12:55 pm
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

I like it. Shades of Harry Anslinger. Catch 22. Working for our side of the ledger for once.
papertiger (c8116c) — 1/28/2017 @ 12:58 pm
The Gordian loophole. Try and get through.
papertiger (c8116c) — 1/28/2017 @ 1:02 pm
I think we should have all visa applications filed through the Point Barrow immigration office, open the second Tuesday of every week for your convenience, between 1:00 and 2:30 P.M.
papertiger (c8116c) — 1/28/2017 @ 1:05 pm
Sure we’ll have more Russians apply, but what are ya gonna do? No plan is perfect.
papertiger (c8116c) — 1/28/2017 @ 1:06 pm
And you’ll be fine when all applications for firearms permits are routed to the Point Barrow ATF office, right?
Dave (711345) — 1/28/2017 @ 1:11 pm
Is Trump’s Executive Order on Immigration Illegal?

That depends on what the definition of “is” is, and what difference, at this point, does it make? Nobody cares any more what’s right or wrong or true or false, those are just words and they could mean anything. It’s like trying to guess the distance between New York City and Los Angeles – one person guesses 14 feet, one guesses 3,000 miles and one guesses 375 billion miles. If you don’t know exactly how far it is, well, those are all equally valid guesses, aren’t they? My truth is just as good as your truth if we don’t know the true truth.
Jerryskids (16a4d5) — 1/28/2017 @ 1:13 pm
And you’ll be fine when all applications for firearms permits are routed to the Point Barrow ATF office, right?

What are the chances of that happening now that Hillary lost? Pretty slim.

Actually I’d be more comfortable if we weren’t ruled by eight judges who for the life of them can’t agree what “Congress shall make no law respecting…” means.
One of them is even dead judging by the picture at the inaugural, but apparently it doesn’t stop Ruth from voting.
papertiger (c8116c) — 1/28/2017 @ 1:20 pm
I guess I killed the debate.
shipwreckedcrew (56b591) — 1/28/2017 @ 1:28 pm
Yeah, lets go with that.
papertiger (c8116c) — 1/28/2017 @ 1:29 pm
Under the Constitution, Congress has the power to (1) limit the migration of slaves after 1808, and (2) create a uniform rule of naturalization. So the 1952 and 1965 acts are both grossly unconstitutional usurpations of power, notwithstanding what the equally unconstitutional Supreme Court decisions upholding those laws may have said. Trump is merely exercising his prerogative as Commander in Chief to repel the invading hordes.
Pro Lifer (51f225) — 1/28/2017 @ 1:34 pm
Ban people named Mohammed, or any of the other 35 spellings.
Pinandpuller (16b0b5) — 1/28/2017 @ 1:42 pm
These kinds of “debates” get started by INACCURATE PRESS REPORTING that has an express bias.

Then you get OpEds that repeat the inaccuracies, and FALSE NEWS stories and debates result.

The EO “bans” nobody. It suspends immigrant visa applications and entries for 90 days from 7 specific countries while existing procedures are evaluated, and new procedures are considered.

It doesn’t say that any of the suspensions will be permanent.

In fact, it says something completely different — it says the “prohibition” on entry will only last as long as the immigrant’s country is unable to provide the requested information.

So, rather than blame the US government for not getting a visa, the immigrant should blame his own government for not getting the US government the information they require.

So, all the reporting that says Trump is to blame for “banning Muslim” immigrants is a CHARACTERIZATION of what he has done which is intended to suggest a false negative impression.
shipwreckedcrew (56b591) — 1/28/2017 @ 2:29 pm
Thing is, to cashiers and pipefitters perched on barstools in Akron or Kalamazoo tonight, their grasp of “common sense” overrides the finer points of erudite debates on mere “legalities.” It’s what they voted for– and to them, it has been a busy and very good week.

“Give George a headline and he’s good for another thirty miles.” – Omar Bradley [Karl Malden] ‘Patton’ 1970
DCSCA (797bc0) — 1/28/2017 @ 2:31 pm
Its been almost 2 hours since I posted #48, and there hasn’t been a single substantive response, whereas in the first hour after the original post was put up, there were 41 posts.
shipwreckedcrew (56b591) — 1/28/2017 @ 2:32 pm
Yes. The absence of a judicial remedy for a legal wrong but does not make it right.

So, there IS an absoluteness to the law, irrespective of courts and precedent.

Decided by whom? Me? Patterico? The NYT Editorial Board?

Since I don’t believe there is an underlying reality to the cosmos, I probably am going to disagree with this also.
Kevin M (25bbee) — 1/28/2017 @ 2:32 pm
Let’s say that we’ve just finished with a major war. During that war, we disallowed ALL immigration from belligerent nations as a wartime necessity (and didn’t listen to no guff). We even required nationals from those nations to register with the authorities and subjected them to controls akin to probation.

(International precedent would allow internment, but we chose not to do that.)

Now the war is over and we are again considering immigration from the former belligerents. Does this have to start the day the war ends? Do all immigrants have to be accepted? Can we vett them for adherence to the old regime?

This is all pretty common, traditional and even internment was accepted by the courts at the time. But to hear the argument today NONE of it should pass muster.

The Constitution is indeed a suicide pact to some people.
Kevin M (25bbee) — 1/28/2017 @ 2:39 pm
That means you win, swc.
papertiger (c8116c) — 1/28/2017 @ 2:39 pm
Even internment of US Citizens was accepted by the US Supreme Court at the time. Here we are talking about a 3 month delay in processing applications for visas in order to get our act together after treasonous conspiracy by the last administration.

I see a difference.
Kevin M (25bbee) — 1/28/2017 @ 2:44 pm
@59 Dave

Is that why my dead fingers are so cold?
Pinandpuller (16b0b5) — 1/28/2017 @ 2:45 pm
That means you win, swc.

Pretty compelling, even on a strictly legalistic view.
Kevin M (25bbee) — 1/28/2017 @ 2:47 pm
Boer does have a point, back in 2016, when he argued congress could have tightened screening but they run aground on the 1965 act Smith him cheerleading.
narciso (d1f714) — 1/28/2017 @ 2:47 pm
71 Papertiger — you mean I “win again.”

LOL.
shipwreckedcrew (56b591) — 1/28/2017 @ 2:48 pm
And you’ll be fine when all applications for firearms permits are routed to the Point Barrow ATF office, right?

This is an Underpants Gnomes argument. You need to fill in Step 2.
Kevin M (25bbee) — 1/28/2017 @ 2:48 pm
Mr President Trump-tear down The Great Society!
Pinandpuller (16b0b5) — 1/28/2017 @ 2:49 pm
The author of the piece is David Bier. He works at the Cato Institute, and looks like he’s about 30 years old.

So, by implication, I conclude he really has no idea what he’s talking about.
shipwreckedcrew (56b591) — 1/28/2017 @ 2:51 pm
Seth frantzman adds a little context, but we must have hair on fire
narciso (d1f714) — 1/28/2017 @ 2:53 pm
“… This is not very complicated if you take the time to actually read the statutory language…”

After giving that judicious presentation I can just picture SWC staring at those wide-eyed cashiers and pipefitters perched on barstools in Akron and Kalamazoo…

Then shouting out, “And the next round is on me, everybody!”
DCSCA (797bc0) — 1/28/2017 @ 2:53 pm
DJT could easily achieve most, if not all, of the result he wants by instituting an across-the-board hyper-scrutiny of documentation. We simply must know to whom we are granting privilege of travel and visitation.

In the meantime, Congress can get off their collective arses and write a tough law sensibly restricting immigration.
Ed from SFV (3400a5) — 1/28/2017 @ 2:54 pm
If a court ruled that Muslims were apples California could keep them out for sure.
Pinandpuller (16b0b5) — 1/28/2017 @ 2:54 pm
I address SWC’s comment #48 in this comment at The Jury Talks Back.
Patterico (115b1f) — 1/28/2017 @ 2:54 pm
Why point barrow, ist vampirs, of course.
narciso (d1f714) — 1/28/2017 @ 2:54 pm
He’s an “immigration policy analyst”, not with CATO, but with the Competitive Enterprise Institute, which is a libertarian think tank.
shipwreckedcrew (56b591) — 1/28/2017 @ 2:55 pm
The Constitution is indeed a suicide pact to some people.

We’re debating a law, not a constitutional provision, but I guess this is shorthand for “let’s ignore the law when Kevin M thinks it’s really important.”
Patterico (115b1f) — 1/28/2017 @ 2:56 pm
If there is a law on the books that says we the people of the US cannot deny entry to our country for any reason at all it should be repealed immediately. It is our right and duty to decide who enters our house and we have the moral right to use any damn factor we want. Neither morality nor racism has any bearing on whom you allow in your home. This country is our home and we better start treating it that way or we will be the outsiders in the house we built.
Rev. Hoagie® (785e38) — 1/28/2017 @ 2:56 pm
Do you think it’s wise to use the contents of a NYT editorial on a breaking news story as the basis for attacking President Trump? Especially when the issues is as politicized as immigration?

It’s not an editorial.
Patterico (115b1f) — 1/28/2017 @ 2:58 pm
Obama did this exact thing in 2011:

http://thefederalist.com/2015/11/18/the-obama-administration-stopped-processing-iraq-refugee-requests-for-6-months-in-2011/
Kevin M (25bbee) — 1/28/2017 @ 3:00 pm
I suppose we are debating the Constitution, too, to the extent that executive orders that violate the law also violate the separation of powers.

But I have focused on the law in this post.
Patterico (115b1f) — 1/28/2017 @ 3:00 pm
Its one interpretation, this why its important to review the statutory re word did Bier so rhetorical?
narciso (d1f714) — 1/28/2017 @ 3:00 pm
If there is a law on the books that says we the people of the US cannot deny entry to our country for any reason at all it should be repealed immediately. It is our right and duty to decide who enters our house and we have the moral right to use any damn factor we want.

You have missed the point of my post, Hoagie.

Nobody is saying WE can’t control who comes into our country.

I am saying the President cannot control it on his own when the Congress has prohibited him from doing so.

“We” do things by electing lawmakers who pass laws that are signed by the President.
Patterico (115b1f) — 1/28/2017 @ 3:01 pm
We’re debating a law, not a constitutional provision, but I guess this is shorthand for “let’s ignore the law when Kevin M thinks it’s really important.”

Actually, it’s the President and his cabinet that have issue the order, not “Kevin M”. It is Patterico who orders them to stop based on his (possibly inaccurate) reading of the law and his discarding of inconvenient precedent.

I’m simply saying that I see no reason that the President does not have the limited authority he is claiming. I am not DOING anything.
Kevin M (25bbee) — 1/28/2017 @ 3:02 pm
But I have focused on the law in this post.

To a fault.
Kevin M (25bbee) — 1/28/2017 @ 3:04 pm
Obama did this exact thing in 2011:

http://thefederalist.com/2015/11/18/the-obama-administration-stopped-processing-iraq-refugee-requests-for-6-months-in-2011/

Not sure about that. The linked piece links an ABC piece which says:

As a result of the Kentucky case, the State Department stopped processing Iraq refugees for six months in 2011, federal officials told ABC News – even for many who had heroically helped U.S. forces as interpreters and intelligence assets.

The op-ed says:

Note that the discrimination ban applies only to immigrants. Legally speaking, immigrants are those who are given permanent United States residency. By contrast, temporary visitors like guest workers, students and tourists, as well as refugees, could still be barred. The 1965 law does not ban discrimination based on religion — which was Mr. Trump’s original proposal.

So it looks like Trump could ban refugees from a particular country. But his order goes further, and (as I quoted before):

I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

This goes beyond refugees to visas, the op-ed seems to argue.

Now, I am not an immigration lawyer or an expert in this area. I just find the reasoning of the op-ed convincing until someone shows me a better analysis.
Patterico (115b1f) — 1/28/2017 @ 3:11 pm
It is Patterico who orders them to stop based on his (possibly inaccurate) reading of the law and his discarding of inconvenient precedent.

I am ordering nobody to stop. I am questioning whether the order is legal. I am linking and throwing open for discussion an op-ed arguing that the order is illegal. I am saying that I don’t care about “precedent” in the sense of “look a president did stuff like this before” because all of you argued that Obama violated the law with his illegal orders and following that precedent means accepting that anything Obama did is now legal.

That’s what I’m doing.

What you’re doing is showing peevish exasperation at the notion that a President might have to follow a law you don’t like. To wit:

To a fault.
Patterico (115b1f) — 1/28/2017 @ 3:14 pm
Its one interpretation, this why its important to review the statutory re word did Bier so rhetorical?

Try again in English?
Patterico (115b1f) — 1/28/2017 @ 3:16 pm
So, here we are, and the argument has settled on whether the 19675 amendment supersedes the previous language allowing broad powers of exclusion. Apparently, read in that light, the 1965 law would prevent barring immigrants from belligerent nations in wartime. Bet you $1000 against a jelly donut that it wouldn’t.
Kevin M (25bbee) — 1/28/2017 @ 3:17 pm
What you’re doing is showing peevish exasperation at the notion that a President might have to follow a law you don’t like. To wit

No, I am suggesting that the President has his own counsel and if his counsel is wrong, some court will make that clear and that he doesn’t have to listen to the NYT or anyone else. If there is any frustration, it is on the part of folks who want to limit Trump, mostly as counting coup.
Kevin M (25bbee) — 1/28/2017 @ 3:20 pm
Syria as a nation has either exterminated or forced out of their country their jewish citizenry. Then they engaged in a civil war and we Americans are supposed to give a rip about their refugees?
torabora (b390ce) — 1/28/2017 @ 3:20 pm
SWC is the only person in this thread I can see who has tried to mount a serious argument that this order is legal (a conclusion I have not ruled out).

I respect an argument like that.

I’m less impressed with impatient brushing aside of the law an an annoyance.
Patterico (115b1f) — 1/28/2017 @ 3:20 pm
Apparently, read in that light, the 1965 law would prevent barring immigrants from belligerent nations in wartime. Bet you $1000 against a jelly donut that it wouldn’t.

I’m not an immigration expert and don’t know whether another provision in law addressed that issue. It’s hard for me to believe no such provision exists.

In my ideal world, everyone would agree in principle that if the law prevents Trump from doing this, that the law must be changed in Congress.

But changing the law by executive order is fun when it’s your President, and we’re starting to see that this applies to both sides.
Patterico (115b1f) — 1/28/2017 @ 3:24 pm
Syria as a nation has either exterminated or forced out of their country their jewish citizenry. Then they engaged in a civil war and we Americans are supposed to give a rip about their refugees?

This is a policy argument. I agree with the policy.
Patterico (115b1f) — 1/28/2017 @ 3:25 pm
No, I am suggesting that the President has his own counsel and if his counsel is wrong, some court will make that clear and that he doesn’t have to listen to the NYT or anyone else.

Did Obama have his own counsel? Was that good enough for you unless and until a court enjoined one of his unlawful orders?
Patterico (115b1f) — 1/28/2017 @ 3:26 pm
leadership is what you do to keep people safe

yup Mr. Trump jumped out in front and said we need to stop all this willy nilly muslim terrorist immigration for say 89, maybe 90 days

think the man has a point i do

whereas the New York Times, they wanted to build a big gorgeous terrorist victory mosque right by the where all them people died at the whirl trade center
happyfeet (28a91b) — 1/28/2017 @ 3:28 pm
Even Bier concedes in the piece you quote that the Sec. of State has the authority to set the procedures by which immigration visa applications are reviewed.

Trumps EO addresses THAT VERY QUESTION.

The author says the exercise of discretion with regard to the procedures is subject to “mischief” by the Admin. That’s an acknowledgement that the Sec. of State has the authority, but the discretion is not absolute (a point with which I don’t necessarily agree until I see the actual language from the 1996 amendment).

So, the way this works out is CAIR or whoever files suit alleging that the EO violates 1152(a)’s ban on race or national origin discrimination.

The Gov’t responds by saying 1152(a)(1)(B) says the power of the Sec. of State to establish procedures is not limited by 1152(a)(1)(A).

CAIR says the 1996 amendments don’t allow that discretionary authority to be abused.

And the Court asks the lawyer for “CAIR” – in what way has the Sec. of State acted to abuse its authority when all it is doing is revising he procedures with respect to the type of information it wants to see from the immigrant’s home country?”

And the answer is?????
shipwreckedcrew (56b591) — 1/28/2017 @ 3:29 pm
by ~~the~~ where all them people died
happyfeet (28a91b) — 1/28/2017 @ 3:30 pm
@106- Happyfeet posting from his barstool in Akron? Or Kalamazoo?
DCSCA (797bc0) — 1/28/2017 @ 3:30 pm
Andrew McCarthy says it is legal.

http://www.nationalreview.com/article/444371/donald-trump-executive-order-ban-entry-seven-muslim-majority-countries-legal
Ed from SFV (3400a5) — 1/28/2017 @ 3:31 pm
i make the good comments pooper
happyfeet (28a91b) — 1/28/2017 @ 3:34 pm
me and Andrew McCarthy
happyfeet (28a91b) — 1/28/2017 @ 3:36 pm
Did Obama have his own counsel? Was that good enough for you unless and until a court enjoined one of his unlawful orders?

In this here case I do not see the black and white like you do, and therefore must wait for the courts. People who we both respect — and found identical faults with some of Obama’s orders — have conflicting views here. These views are generally not based on loving Mr Trump.

I also don’t see the damage to any US person. Some folks from a war-torn area know to be exporting militant extremists intent on causing harm will have to wait longer than usual. BFD. To get worked up about this on the basis of some legal technicality seems silly. The President’s JOB includes national security and national defense. In situations where the law is muddled, and precedent has allowed similar actions, I don’t see a need to second-guess.
Kevin M (25bbee) — 1/28/2017 @ 3:37 pm
Happyfeet has always been a big fan of Andrew McCarthy, the National Review and Eastasia.
Kevin M (25bbee) — 1/28/2017 @ 3:39 pm
And I reiterate the point that you acknowledge and understand — the limits in 1152(a)(1) regarding non-discrimination apply only to the regularized process of immigrant visa applicants.

It applies to people who go to the US Embassy in their home country, fill out an immigrant visa application, meaning they wish to come to the US to live, and does not apply to people seeking admission as refugees or asylum seekers.

The way the process works is that the State Dept. does a check on the immigrant applicant, and then approves or disapproves the application.

The problem Trump and the GOP have identified is that the Obama Admin. pretty much threw open the doors to legal immigration — how could it not since it wasn’t making much of an effort to check illegal immigration — and refugees/asylum seekers.

The EO simply closes the door temporarily while the Obama Admin procedures are reviewed and revised.

The CONTROVERSY is manufactured by Administration opponents who won’t read the statute accurately and/or mischaracterize what the EO actually does.
shipwreckedcrew (56b591) — 1/28/2017 @ 3:39 pm
well if they’re not letting green card holders back in like Mr. Instapundit says then that is seriously effed up
happyfeet (28a91b) — 1/28/2017 @ 3:40 pm
I guess I’m a bit confused.

Obama banned refugees from Iraq for 6 months. Was that also illegal? Or was a single terrorist who slipped through channels enough to designate the entire region as a threat to the nation?

If the author is correct, then it would be impossible for the American president to block immigration or refugees from anywhere. Because the second he says “people from country X cannot enter our soil” for whatever reason, he would be discriminating on the basis of “national origin”.

I suppose an argument can be made that we’re not banning Syrians simply because they were born there. It’s not a Muslim ban. People from Saudi Arabia and Egypt can still come here. We’re temporarily blocking entry from regions that are hostile to the nation. A person born in Saudi Arabia working in Syria would be banned too – theoretically.

I’m not sure what a 90 day immigration ban will achieve other than provoking the already hostile opposition. The burden of explaining that is on Trump.
lee (55777a) — 1/28/2017 @ 3:40 pm
but that’s probably just some semi-literate halfwit momo at the failmerican Joke-Department of “Homeland Security”
happyfeet (28a91b) — 1/28/2017 @ 3:41 pm
@shipwreckedcrew

I read your posts. Very interesting. I don’t who’s right or wrong at the moment.
lee (55777a) — 1/28/2017 @ 3:42 pm
I will admit that, to the extent that the order bars re-entry of US persons, it should be enjoined. I expect it will be unless modified. I also expect that the order will be interpreted for Customs so allow re-entries. Although re-entry from some places may cause some concern, as re-entry from Peru or Colombia did at one one.

(And historically, there were damn few visas issued to Peruvian and Colombian nationals in the 90’s, on the basis of too many drugs coming from those countries. This isn’t new.)
Kevin M (25bbee) — 1/28/2017 @ 3:45 pm
one one = one time
Kevin M (25bbee) — 1/28/2017 @ 3:46 pm
Andrew McCarthy says it is legal.

http://www.nationalreview.com/article/444371/donald-trump-executive-order-ban-entry-seven-muslim-majority-countries-legal

As I say at the Jury, I don’t find his analysis totally persuasive but it will take a post to deal with it.
Patterico (115b1f) — 1/28/2017 @ 3:51 pm
UPDATE: Here is Andrew McCarthy arguing against the op-ed. I’m not totally convinced by McCarthy’s argument, but it will take a new post to explain why.
Patterico (115b1f) — 1/28/2017 @ 3:53 pm
Wait. There’s more.

POTUS signs executive order calling for reorganization of NSC.

POTUS signs executive order instituting 5-year lobbying ban for administration officials.
elissa (8fb4f8) — 1/28/2017 @ 3:59 pm
I’m not so sure the 1965 amendments banning discrimination work to restrict the power given to the President in the 1952 statute, 1182(f).

Court’s routinely find that Congress meant what it said, and doesn’t necessarily mean what it doesn’t say expressly.

The text of the 1965 amendments go through several provisions of Title 8, and expressly amend the language of numerous statutory provision.

Court’s routinely hold that where Congress has the opportunity to act, but does not do so expressly, the Court will not infer intent on Congress’ part.

So, when the text of 1182(f) is left unchanged by the 1965 amendments, and that text specifically provides Congressional authorization to the President to “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”, later language inserted into another statute isn’t going to necessarily curtail the reach of the language that remains unchanged.

The 1965 amendments do not address “non-immigrants”, and they do not address the issue of when the President finds action to be “in the interests of the United States.”

The purpose of the 1965 amendments, as expressly made clear by the congress, was to deal with favoritism towards Western European immigrants from a numerical standpoint, when compared to immigrants from other places around the world.

I’ve read countless times in various federal court case opinions language to the effect of “if Congress had intended XYZ to be the case, it would have said XYZ. It did not, and we decline to read words into the statute that Congress did not include.”
shipwreckedcrew (56b591) — 1/28/2017 @ 4:00 pm
Did Obama have his own counsel? Was that good enough for you unless and until a court enjoined one of his unlawful orders?

Also, no, but it HAS to be. The only constitutional corrections are a court order (which happened to many of them), impeachment or the next election. There at least three extra-constitutional methods but those are fraught with other issues.
Kevin M (25bbee) — 1/28/2017 @ 4:01 pm
And yet another EO that may help put in context the temporary refugee ban being discussed in this thread.

President Trump signed executive action Saturday ordering the Joint Chiefs of Staff to immediately develop a plan to defeat the Islamic State, sending a message to the world that obliterating the terrorist army is a top priority for the U.S.
“This is the plan to defeat the Islamic State of Iraq and Syria, in other words ISIS,” he said as he signed the document in the Oval Office.
The president issued the order in the form of executive action to send a message, said a senior administration official.
“Obviously that executive order will represent a profound statement on the part of the United States that we are committed to ending this atrocity,” said the official.
The Joint Chief will have to present options for the destruction of ISIS to Mr. Trump within 30 days. Anticipating the order, military leaders reportedly have already begun to devise new strategies.
elissa (8fb4f8) — 1/28/2017 @ 4:07 pm
i’m so excited we’re safer

all of a sudden people what were gonna die screaming at the hands of terror refugees get to live to be old people

there’s really no downside here
happyfeet (28a91b) — 1/28/2017 @ 4:13 pm
One of my main objections to Trump (the other main one being I did not see him winning) was that I didn’t trust him to govern as he said he would. His commitment to ANY conservative values seemed suspect. I am not happy with the extent his protectionist streak (and am hoping it’s mostly negotiation), but even that is “conservative” for paleo values of conservative.

I am unwilling to attack him for pedantic or legalistic reasons when he’s doing what he said he would do. It’s refreshing actually. If this were some gross violation, like allowing the NSA to use Muslims’ phones as warrantless bugs and trackers, yeah I’d have a problem. But they wouldn’t do something like that, would they?
Kevin M (25bbee) — 1/28/2017 @ 4:14 pm
Trump wins even bigger if his eo is overturned. All it takes is one refugee or immigrant that Trump intended to ban blows something up or kills cops or any number of terrible actions that you can predict a few of them will do and Trump is off the hook and his enemies are responsible for it.

If refugees/immigrants that Obama let in do terrorism, Trump is off the hook for that too because they wouldn’t have been here to do it under Trump’s regime. He’s covered, no matter what the courts do.
jcurtis (c5bbcf) — 1/28/2017 @ 4:19 pm
I think this order strikes a middle ground but David bier’s previous commentAry at the puffington suggests he doesn’t want any testricti
narciso (d1f714) — 1/28/2017 @ 4:19 pm
Longer article linked below includes much info too complicated to capture in a brief quote here… I think worth a read and consideration….

Trump didn’t select seven “Muslim-majority” countries. US President Barack Obama’s administration selected these seven Muslim-majority countries.
It was the US policy under Obama to restrict and target people “who have been present in Iraq, Syria, Iran, Sudan, at any time on or after March 1, 2011 (with limited government/military exceptions).” This was text of the US Customs and Border Protection in 2015 relating to “the Visa Waiver Program and Terrorist Travel Protection Act of 2015“. The link even includes the seven nation list in it: “Iraq, Syria, Iran, SUdan, Somalia or Yemen.” And the media knew this back in May 2016 when some civil rights groups complained about it. “These restrictions have provoked an outcry from the Iranian-American community, as well as Arab-American and civil-liberties groups, who say the restrictions on dual nationals and certain travelers are discriminatory and could be imposed against American dual nationals.”

It was signed into law on December 18, 2015, as part of the Omnibus Appropriations Act of FY2016.

So for more than a year it has been US policy to discriminate against, target and even begin to ban people from the seven countries that Trump is accused of banning immigrants and visitors from. CNN even hinted at this by noting “those countries were named in a 2016 law concerning immigration visas as ‘countries of concern.’” But why didn’t CNN note that the seven countries were not named and that in fact they are only on the list because of Obama’s policy?

https://sethfrantzman.com/2017/01/28/obamas-administration-made-the-muslim-ban-possible-and-the-media-wont-tell-you/
elissa (8fb4f8) — 1/28/2017 @ 4:30 pm
Effective restriction, or may be I’m mistaken.
narciso (d1f714) — 1/28/2017 @ 4:31 pm
I think shipwreckedcrew has the right of it. And thanks to elissa, too.

What I didn’t realize was what a much better place America would be if Oswald had shot LBJ instead of JFK.
nk (dbc370) — 1/28/2017 @ 4:43 pm
I am unwilling to attack him for pedantic or legalistic reasons when he’s doing what he said he would do. It’s refreshing actually. If this were some gross violation, like allowing the NSA to use Muslims’ phones as warrantless bugs and trackers, yeah I’d have a problem. But they wouldn’t do something like that, would they?

Kevin M

I get this argument. I also didn’t bet on Trump doing what he said he would (and I still do not… things are still coming I’m sure). At any rate, if you like his executive order’s action, then you don’t want it to be as easily undone as the next president’s signature.
Dustin (ba94b2) — 1/28/2017 @ 4:56 pm
I see the logic who who might excuse any behavior because, well, Trump is simply delivering on his campaign promises. I see it, but it is absurd. We are a nation of laws with checks and balances that presumably prevent a tyrant with a pen from undermining the Divine Providence as granted free men. On the other hand, the question before us hinges on a very basic question, and it is not the legality or otherwise of rule by decree. The order itself may pass statutory muster, but does it further the precedence of the last 8 years? Will this become common practice, or will Obama’s legacy be seen as an aberration?

Executive orders in and of themselves are perfectly legal in that they do not run afoul of the Legislative process. But if the last 8 years has taught us anything, it is that the will of the people must be expressed and enforced by Congress. Executive Orders are those rules and decrees that may be necessary for the orderly workings of the Executive branch, and each should be thoroughly examined to assure that they do not incrementally invest in the Executive what properly belongs to our Legislature, federal or local.

I have not a clue as to the legality of President Trumps actions. But EOs give me pause.
Estarcarus (cd97e1) — 1/28/2017 @ 5:01 pm
Well he haD mostly the same advisers so much of the same policies would have obtained, Stephen king’s altered history suggests the civil rights act might not have passed.
narciso (d1f714) — 1/28/2017 @ 5:01 pm
But I hasten to point out that I am but a country bumpkin who does not proofread his posts. Thus, pass the moonshine and take my ramblings as you will.
Estarcarus (cd97e1) — 1/28/2017 @ 5:03 pm
Everything is subject to interpretation, on some issues like dacha the amnesty infrastructure has devised a consensus, except for judge Hansen, on others the record is less clear. Even after boumedienne, the question of detainee holds were tevided
narciso (d1f714) — 1/28/2017 @ 5:07 pm
Even David French is showing a more moderAte course.
narciso (d1f714) — 1/28/2017 @ 5:14 pm
Haberman still craves that rizzotto.
narciso (d1f714) — 1/28/2017 @ 5:18 pm
But EOs give me pause …

Haven’t seen you here before. These EO things were the MO of the OA. Were you in stasis for the last eight years? Or are EOs ok for Ds, and pause giving for Rs?
BobStewartatHome (c24491) — 1/28/2017 @ 5:24 pm
Mr. Obama was, after all, a “constitutional scholar”. EOs are prominent in the Constitution.
BobStewartatHome (c24491) — 1/28/2017 @ 5:26 pm
Well, yes, this was part of the 1965 “kinder, gentler America” package.
nk (dbc370) — 1/28/2017 @ 5:27 pm
To be blunt, he was a lecturer in alinsky organizing techniques, from critical race studies
narciso (d1f714) — 1/28/2017 @ 5:28 pm
Guy benson, corrects haberman’s misunderstandings
narciso (d1f714) — 1/28/2017 @ 5:29 pm
Maybe if Obama had not (redacted) on the spirit if not the letter of the Cuban adjustment act, as Clinton did 20 years earlier
narciso (d1f714) — 1/28/2017 @ 5:33 pm
Elissa, I’ve posted the Frantzman list on Facebook, but it merely changes the question to “why didn’t Trump come up with his own list?” There are plenty of countries in which jihadi terrorists are active not on that list.
Kishnevi (050eae) — 1/28/2017 @ 5:38 pm
Trump, unlike many, is willing to use the same implements employed by the left to enslave us (OA’s EOs in this case,) to free us. Consider Trump’s EOs the equivalent of using using a hammer and cold chisel to smash a handcuff that was secured with a hammer, a hot rivet, and an anvil. This is troublesome if you believe that utopia is just a matter of following a few simple rules. But if this was a prescription for success, we would be enjoying an easily achieved perfect world already. Genghis Khan demonstrated the fallacy of utopian thinking. Mass slaughter focuses the mind. Even the Soviet Union was alarmed by Mao’s Cultural Revolution. Pol Pot had it easy, Jimmy Carter was the only possible opponent, and Peanut was looking forward to his retirement building low income houses.
BobStewartatHome (c24491) — 1/28/2017 @ 5:39 pm
Odd.

https://1.bp.blogspot.com/-89GOi0KvsFo/WIyqDMPQyQI/AAAAAAABFJY/oteqnbb9o1Qb15kKybClQD49dYVXs2JOACLcB/s1600/1ninetymilesaVjyo1vha3w8o1_1280.jpg
Rev. Hoagie® (785e38) — 1/28/2017 @ 5:41 pm
142
EOs have been the lifeblood of the modern presidency. What changed under Obama was a shift from pretending EOs merely interpreted and applied existing law to acknowledgement that EOs were a means by which POTUS can legislate all on his own, with no reference to Congress.
Kishnevi (050eae) — 1/28/2017 @ 5:43 pm
Its a chisel not a hammer, I think its an interim step, having gOuged the reaction, he’ll probably expand the list
narciso (d1f714) — 1/28/2017 @ 5:47 pm
Hoagie, Slick supported school uniforms in Louisiana when that was fashionable. You’ve got to be quick to keep up with the latest fake news fad. And Willy was two weeks ahead of them right up to the point where DNA was discovered on a blue dress. And after that he played the victim card, abandoning his cult leadership persona.
BobStewartatHome (c24491) — 1/28/2017 @ 5:47 pm
nk,

Hold off until you read my long post, which I am working on.
Patterico (115b1f) — 1/28/2017 @ 5:50 pm
== “why didn’t Trump come up with his own list?”==

Kishnevi –Obviously I can’t answer your question. But my guess is that since those 7 countries of concern had already been acted on by Obama and congress and were effectively official law for over a year, that it gives his EO “extension” a lawful basis as opposed to being accused of creating completely new law.

The pre-existance of those 7 countries in customs, border and “Travel Protection” law that only a few outlets even bothered to hint at, also once again exposes the majority of media as the hypocrites and propagandists they are.
elissa (8fb4f8) — 1/28/2017 @ 5:57 pm
the nasty propaganda sluts at NPR, they’re making the argument that so far no muslim terrorists from the seven muslim terrorist countries have killed americans on american soil

completely ignoring how many people they’ve casually laughtered like pigs in europe and elsewhere
happyfeet (28a91b) — 1/28/2017 @ 6:01 pm
ugh i mean slaughtered
happyfeet (28a91b) — 1/28/2017 @ 6:01 pm
This shouldnt surprise, John you carefully review European court precedents on interrogation, and they still yelped
narciso (d1f714) — 1/28/2017 @ 6:04 pm
I think McCarthy’s Article II arguments are authoritarian and have spooky implications.

His argument that there is no conflict between the EO and section 1152 throws textualism to the wind and would make the King v. Burwell supporters happy. (Remember? “Established by the state” really means “established by the HHS secretary.”) To heck with the text! I think I can read Congress’s mind and so we can ignore what Congress wrote! Discrimination is not discrimination if it’s for the right reasons! Yay!

The 2015 law is the part I find most confusing. Is the argument that Trump’s order does nothing different than that law? Or that it is explicitly authorized by that law?

That does not seem to be McCarthy’s argument. It seems to be: hey Congress discriminated in that law, so Trump by analogy can discriminate in this order.

But again, that is the argument that confuses me the most, and so I would find further commentary on it useful.
Patterico (861bfc) — 1/28/2017 @ 6:08 pm
Hoagie, Trump is the chisel to Obama’s anvil?
BobStewartatHome (c24491) — 1/28/2017 @ 6:08 pm
“Discrimination” is a very valuable skill. Most of the early 20th Century statistical literature was devoted to problems of “discrimination”. And in WWII, we never considered the possible downside of “discriminating” against the Axis powers. It seemed eminently sensible. Know your enemy?
BobStewartatHome (c24491) — 1/28/2017 @ 6:13 pm
Unless visa applicants in overseas embassies and consulates are considered to be “within the jurisdiction” of the United States for Equal Protection purposes, then there is no reason why Congress could not discriminate. Invidiously. So far, immigration jurisprudence has been that Congress* can also discriminate against aliens inside the United States with a suggestion that it cannot be invidious.

*As opposed to the States.
nk (dbc370) — 1/28/2017 @ 6:45 pm
Despite misrepresentation in the media, including the ACLU itself, the stay ordered by Judge Donnelly does _not_ stay Trump’s executive order.

It only stays removal of those with already approved visas.
SPQR (a3a747) — 1/28/2017 @ 7:28 pm
Josh blackman handlers the play by play.
narciso (d1f714) — 1/28/2017 @ 7:39 pm
There is much less to Judge Donnelly’s order than meets the eye.

It is issued in response to a “Removal” process.

I suspect the only people that fall under the terms of the Order are people who are being detained at a US Port of Entry with a valid visa, and are being turned back. If these travelers are unable or unwilling to voluntarily return to where they traveled from, they would be “removed” by Immigration back to their home country. These would be people with valid visas who reach US shores, and therefore have the right to contest a decision to “remove” them under an Equal Protection and/or Due Process claim as applied to immigration matters.

It does not change the EO with regard to stopping the issuance of visas, and it does not change the EO with regard to revoking visas that have been issued but where the immigrant has not yet traveled to the US.

I don’t find any language in the EO that actually speaks to the issue of “removal” of persons in the US with valid visas. I don’t read any intention into anything in the EO that persons from the 7 named countries, already in the US with a validly issued visa, are subject to immediate removal under the terms of the EO.
shipwreckedcrew (56b591) — 1/28/2017 @ 8:12 pm
And green cards will be handled on a case by case basis,
narciso (d1f714) — 1/28/2017 @ 8:15 pm
Apparently protesters are blocking passengers, roads, cabs, etc at JFK and O’Hare. That will sit well with weary travelers who are not in any way shape or form involved.

Hundreds of people protested inside and outside O’Hare’s international terminal Saturday night, chanting, “The whole world is watching.” As the crowds swelled, police shut down vehicle access to the terminal.

A few affected travelers had already been released after hours of questioning. They included Hessan Noorian, a Park Ridge resident returning with his family from Iran.

Noorian and his wife, Zahra Amirisefat, knew about Trump’s order before boarding their flight home to Chicago. But the couple never imagined it would apply to them. “The only thing I can say is, it seems something changed,” Noorian said.

Noorian has a green card, as well as British and Iranian citizenship, and Amirisefat is a U.S. citizen. Their son, Ryan, was born six months ago in suburban Chicago. They had been visiting Tehran to introduce their child to their family.

When they landed at O’Hare around noon Saturday, immigration officers told them Noorian could not enter the country without answering some questions, Amirisefat said. They waved her and the baby through but, despite her husband’s urging her to go home, she refused to leave without him.

The couple, who said they work at Oakton Community College, then texted Amirisefat’s brother and submitted to five hours of on-and-off questioning. The treatment during the detention was neither abusive nor exemplary, she said. She was allowed to nurse her son in a private room after making several requests, and her husband was given juice when he felt his blood sugar levels drop.
elissa (8b3e8e) — 1/28/2017 @ 8:32 pm
Apparently Faux-cahontas is at Logan with a bullhorn.

And Hillary has tweeted that she “stands with the people gathered across the country tonight defending our values & our Constitution. This is not who we are.”
elissa (8b3e8e) — 1/28/2017 @ 8:59 pm
The irony of being at Logan airport arguing for unvetted nationals from the middle east escapes her.
narciso (d1f714) — 1/28/2017 @ 9:03 pm
Unless visa applicants in overseas embassies and consulates are considered to be “within the jurisdiction” of the United States for Equal Protection purposes, then there is no reason why Congress could not discriminate.

I agree. If Congress does it.
Patterico (115b1f) — 1/28/2017 @ 9:45 pm
@Patterico:If Congress does it.

And I do agree with this, but in many cases we find that Congress has delegated the decision to the executive. Which has happened in the 2015 law that Trump’s executive order references, it makes extensive references to lists designated by the Secretary of State, Secretary of Homeland Security, etc.

Congress, in my opinion, should not delegate its authority this way, but I don’t know how you can stop them from doing it. And if they do I don’t see that it is illegal for the executive to act as Congress has delegated it to act.
Gabriel Hanna (61adec) — 1/28/2017 @ 10:17 pm
And I do agree with this, but in many cases we find that Congress has delegated the decision to the executive. Which has happened in the 2015 law that Trump’s executive order references, it makes extensive references to lists designated by the Secretary of State, Secretary of Homeland Security, etc.

Congress, in my opinion, should not delegate its authority this way, but I don’t know how you can stop them from doing it. And if they do I don’t see that it is illegal for the executive to act as Congress has delegated it to act.

I agree. I do not see, however, how Congress has delegated to the executive the right to make comprehensive determinations on which immigrants will be allowed from which countries.

I think McCarthy’s argument on that makes no sense, and that badly written Seth Frantzman piece everyone is circulating is well-nigh incomprehensible.
Patterico (115b1f) — 1/28/2017 @ 11:30 pm
@Patterico: In the law I linked to, it says that these secretaries, who are part of the executive branch, get to make the lists of countries to which these sections apply, and so this was delegated to them by Congress. (Iraq and Syria are explicitly written in in part (I).)

“(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

“(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and

“(ii) regardless of whether the alien is a national of a program country, the alien is not a national of—

“(I) Iraq or Syria;

“(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

“(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).
Gabriel Hanna (61adec) — 1/29/2017 @ 12:46 am
RE: 142

While I believe I made a muddle of my post, what preceded the statement addresses exactly your question. To whit: will, at some future point in time, the 8 years of Obama’s seeming rule by decree be seen as an aberration or will the precedent set become SOP going forward? It is precisely because of the behavior of the preceding administration that now I feel obligated to view every EO with a wary eye. Is the thing a power grab, or is it not? In this case, I admit, I do not know. I leave it to Congress to assert its natural authority, if it has the will to do so.

As you have not read any of my prior comments, let me disabuse you of the notion now: I am not in the employ of George Soros as a professional troll. Would that I were: I hear the gig pays well. But just because I voted Trump does not relieve me of my obligation to be intellectually honest and consistent. I have always judged Obama as a bit of a tyrant, and believe history will judge him as such.

Now, I am going to go scour the blog to find any references to an oath of allegiance to any ideology that one must swear to simply read its contents. And, heaven forfend, comment on what I have read.
Estarcarus (cd97e1) — 1/29/2017 @ 8:32 am
I didn’t get any kind of an inkling of what the legal arguiments are from The New York Times (or other newspapers) and what I heard on television, except maybe for the idea that Donald Trump had exceeded his authority.
Sammy Finkelman (dec35d) — 1/29/2017 @ 10:19 am

1/28/2017

Is Trump’s Executive Order on Immigration Illegal? Signs Point to “Yes”

175 Responses to “Is Trump’s Executive Order on Immigration Illegal? Signs Point to “Yes””

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