Patterico's Pontifications

1/29/2017

Responding to Andrew McCarthy on the Legality of Trump’s Immigration Order

Filed under: General — Patterico @ 4:00 am

Yesterday morning I linked and discussed an op-ed in the New York Times by David J. Bier, arguing that President Trump’s immigration order signed yesterday is illegal. Bier is described as “an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.” Andrew McCarthy at National Review responded to Bier with a piece that purports to rebut Bier’s analysis. I am not an immigration lawyer 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 of Bier and McCarthy might be useful to people interested in the topic.

Before I get into the weeds, let me make a couple of general observations.

First, as Bier concedes, to the extent that Trump’s order purports to suspend refugee status for refugees from Syria, Iraq, and other places, I believe it can do so — at least to the extent that no determination has yet been made with respect to a particular refugee. The controversy is not over refugee status but a more general suspension of immigration (the details of which I will discuss below.)

Second, Bier’s argument is not that the United States has no control over its borders, but that decisions to deny immigration to everyone from a particular country is a decision that must be made by Congress, not the President. Nothing in Bier’s argument says the U.S. is helpless in the face of developments in another country.

Third, this post does not address a judge’s decision last night granting a stay of certain actions pursuant to Trump’s executive order. The analysis of this post may be relevant to the litigation of that case, but we don’t know yet, as the judge has not yet released a written explanation of her reasoning.

Now, to the details. Bier argues: “The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin.” At issue is this section of Trump’s order:

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).

Bier argues that suspending entry of people from specific countries, as Trump’s order does, amounts to discriminating on the basis of nationality or place of residence, in violation of 8 U.S.C. § 1152:

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.

Bier says: “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.”

Bier notes that Trump relies in part on 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, Bier argues, this provision was overruled by the later 1965 amendments present in section 1152 quoted above.

McCarthy responds to this argument in several ways. His arguments are dismissive of textualism, and give excessive deference to executive power.

DISMISSING TEXTUALISM

McCarthy argues that Trump’s order and Congress’s statute (section 1152) are not in conflict, and casts textualism to the wind as he does so:

[T]his provision is not as clearly in conflict with Trump’s executive order as Bier suggests. As he correctly points out, the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.

In essence, McCarthy is saying: even if the text says the President can’t discriminate on the basis of nationality or place of residence, that was designed to address nasty and mean discrimination by racist types, not good discrimination based on a desire to protect the country. McCarthy is asking us to ignore the text and look at the hearts of the legislators.

This is the same mushy and standardless sort of textual interpretation that leftists love to use when there is a clear textual provision they don’t like. Remember the Halbig case, which went to the Supreme Court in the companion case of King v. Burwell? There was a clear textual provision (“established by the State”) which the Supreme Court read out of the law based on their personal interpretation of Congress’s intent. I don’t like this sort of analysis when the left uses it, and so I don’t like it when the right uses it either.

EXCESSIVE DEFERENCE TO EXECUTIVE POWER

McCarthy also argues that the Constitution empowers the President to protect citizens: “the president’s clear constitutional authority to protect the United States would take precedence over Congress’s dubious authority to limit the president’s denial of entry to foreign nationals.” In other words, it doesn’t matter what Congress says about who comes into the country because that’s up to the President.

This argument fails as an initial matter because (as Dan McLaughlin has pointed out) it is Congress, not the President, which has plenary power under the Constitution “to exclude aliens or prescribe the conditions for their entry into this country.” It can delegate a conditional exercise of that power, but if it prohibits that power from being exercised in a certain manner, the President cannot overrule Congress.

This argument goes to the heart of how citizens feel about executive power. The argument that we should read all kinds of implied authority into the President’s Article II powers reminds me of the debate over Bush’s wiretapping. As I explained in 2013:

I never bought into Bush’s Article II justifications, which struck me as too much of an assertion of kingly powers, but for a while, I bought the argument that FISA authorized Bush to conduct the wiretaps. I ultimately changed my mind in 2008, because FISA explicitly provided for a declaration of war, meaning the AUMF could not implicitly authorize what the statute had already expressly prohibited.

My views changed because of my interpretation of the statute passed by Congress. But folks like McCarthy, who is of a rather more authoritarian bent when it comes to fighting the scourge of Islamic terrorism, always argued that what Congress said in this area didn’t much matter. McCarthy argued that Bush had the inherent power under the Constitution to conduct the wiretapping, and if Congress tried to pass a law like FISA to the contrary, it had no business doing so.

That sort of analysis flies in the face of the analysis of the Youngstown Sheet & Tube case relating to Harry Truman’s illegal seizure of steel plants, ostensibly for the purposes of national security. Presidents will always cite national security as a reason to overstep their bounds, and there will always be authoritarians there to applaud. But in the Youngstown case, Justice Jackson’s famous concurring opinion set the standard for how sweeping claims of executive power are to be analyzed, and this quote is vitally relevant:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

In other words, when the President acts against a law passed by Congress, he had better be exercising a power clearly given to him and him alone by the Constitution. But McCarthy’s attempts to establish an Article II power in this area, like the Bush wiretapping, fall flat. He cites Thomas Jefferson speaking about the President’s authority in “the transaction of business with foreign nations.” But in the very next paragraph McCarthy is forced to concede that Congress has constitutional authority “to establish the qualifications for the naturalization of citizens.”

What this means is that, as already noted, granting legal status to aliens is a matter for Congress, not the President. And when a President takes measures that are incompatible with the provisions of a statute passed by Congress regarding immigration, his powers are at their “lowest ebb” and his actions cannot be sustained.

The contrary view, resting on the President’s national security authority, can be taken to absurd lengths. I have already noted that Presidents always rely on national security or emergencies to stomp on the Constitution, whether they are locking citizens in internment camps, seizing steel mills or railroads, or grabbing citizens’ gold. And once you extend this authority into the area of immigration, you’re essentially giving up any argument that Congress has a say in deciding who comes into the country and who doesn’t. Once we concede that the President can say who comes in and who stays out as a matter of national security, we give up our ability to argue against almost any immigration order issued by a President — including President Obama.

Indeed, Obama tried to justify DAPA, his sweeping unconstitutional amnesty, in terms of our national security. In the United States’s brief in United States v. Texas, at pages 11-12, the Solicitor General wrote:

Deferring action for these individuals, the Secretary continued, would support “this Nation’s security and economic interests and make[s] common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.”

See what I mean? Presidents cite national security for literally everything. If you let them, they will run completely amok — and tell you they have to, so you can be safe.

THE VISA WAIVER PROGRAM

McCarthy also argues as follows:

Trump’s executive order also expressly relies on an Obama-era provision of the immigration law, Section 1187(a)(12), which governs the Visa Waiver Program. This statute empowers the executive branch to waive the documentation requirements for certain aliens. In it, Congress itself expressly discriminates based on country of origin.

. . . .

So, not only has Congress never repealed the president’s sweeping statutory power to exclude classes of aliens from entry on national-security grounds; decades after the 1965 anti-discrimination provision touted by Bier, Congress expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved. Consequently, by Bier’s own logic, the 1965 statute must be deemed amended by the much more recent statute.

McCarthy says the executive order “relies on” section 1187(a)(12) . . . but the only citation of that provision is the language I already quoted above, which, as a reminder, is here:

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 . . .

It’s not clear to me precisely what McCarthy is arguing here. He says section 1187(a)(12) allows the executive to waive certain visa requirements — but that’s not what Trump is doing here. He says Trump “relies on” that provision, but it reads to me like Trump is citing it merely as a reference to a list of countries. Interpreting McCarthy’s argument as charitably as I can, I interpret it as an analogy: Congress itself has discriminated against certain countries, so therefore Trump can do so here as well.

But that begs the question to be decided: does the President have authority to do this on his own? Please understand: I’m not saying Congress couldn’t undertake the actions Trump took in this order. I’m saying Congress could — but that the President can’t, alone, if Congress has already told him he can’t.

Yes, Congress can change its mind, and if McCarthy is right that Congress has carved out an exception to the discrimination ban by virtue of the provisions in section 1187(a)(12), that would indeed amend the 1965 amendments embodied in 8 U.S.C. section 1152 cited above.

But I don’t see how that provides authority to discriminate against these countries in ways unrelated to the waiver of certain visa requirements, which is what section 1187(a)(12) actually seems to cover.

In other words, just because Congress has changed its mind in one area does not mean Trump can in another.

ODDS AND ENDS

I’m also puzzled by this argument from McCarthy:

Bier concedes that, despite the 1965 anti-discrimination statute, President Jimmy Carter barred entry by Iranian nationals in 1980, after the Khomeini revolution led to the U.S.-hostage crisis. But he treats Carter’s restriction based on national origin as an aberration.

That’s not what Bier says. McCarthy makes it sound as though the Carter action provided a clear precedent against the non-discrimination law, but Bier argues that, to the contrary, it was not:

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.

This is important because, as Bier has already explained earlier in the op-ed, the discrimination ban does not apply to students, tourists, or other temporary visitors:

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.

Bier is not saying the Carter order was a mere aberration. He is saying it does not violate the discrimination ban passed by Congress in 1965. That is a very different argument.

Ultimately, McCarthy’s piece, praised by many who support Trump’s order on a policy level, is revealed to be overly deferential to the executive. It applies a legal framework for interpreting legislative texts that rejects textualism and would make lefties smile. It appears to misunderstand the difference between Congress’s authority to change its mind on an immigration matter, and a President’s ability to reject Congress’s judgment in this area. And finally, it misstates the arguments of Bier, the target of his criticism.

It could be that Bier is ultimately wrong and that Trump’s order is legal. But not, I think, for the weak reasons offered by Andrew McCarthy.

UPDATE: At the risk of making a long post even longer and harder to get through, I think that the best argument for the legality of the executive order is the argument (made by my commenter shipwreckedcrew) that the 1965 non-discrimination provision (section 1152(a)) did not explicitly amend the language of the 1952 broad grant of authority to suspend entry pursuant to section 1182(f). Bier argues that, because the 1965 provision came later, it limits the broad grant of authority given in 1952, and did not have to do so explicitly.

I think Bier’s argument is even more persuasive when you note that the non-discrimination provision in section 1152(a) says it applies “[e]xcept as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” In other words, Congress carved out specific exceptions to the general nondiscrimination rule, and section 1182(f) was not one of the listed exceptions. That analysis strongly indicates that the rule of section 1182(f) is not an exception to the nondiscrimination rule in section 1152(a).

The counterargument is that if Congress wanted to change the broad grant of authority in section 1182(f), they would have rewritten section 1182(f). I think this is wrong, because lawmakers enact broad principles all the time without specifically rewriting every other previous law to which the broad provision might apply. If Congress says: “the federal government will from this point forward no longer use race as a factor in employment decisions” then Congress doesn’t have to rewrite or repeal every previous provision in law that might have conflicted with this new and broad provision. It would be better practice to do so, but they don’t have to.

The same analysis applies here: the later, broader provision, not carving out an exception for the President’s previous broad grant of authority, limits that broad grant.

Until, that is, Congress says otherwise.

UPDATED to correct the name of the Youngstown Sheet & Tube case.

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

200 Responses to “Responding to Andrew McCarthy on the Legality of Trump’s Immigration Order”

  1. Well, the executive order does refer to law passed by Congress in 2015, H.R.158 – Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which allow the Secretary of State and the Secretary of Homeland Security to designate the nations that get their visas suspended. And since those two officials are part of the executive branch, it would seem that Congress has delegated the responsibility of designating these nations to the executive, and Trump would be able to order those Secretaries to do so.

    (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)

  2. @Patterico:Interpreting McCarthy’s argument as charitably as I can, I interpret it as an analogy: Congress itself has discriminated against certain countries, so therefore Trump can do so here as well.

    I think this is not quite right. McCarthy is saying that Congress itself has delegated to the executive the authority to discriminate against nations in a national security context. That’s why McCarthy says

    ” This statute empowers the executive branch to waive the documentation requirements for certain aliens.”

    and he quotes

    in any country that has been designated by the Department of Homeland Security as a country “of concern.

    Maybe Congress shouldn’t have delegated that to the executive but it certainly appears that they did so.

    Gabriel Hanna (61adec)

  3. Furthermore, in February 2016 the Obama administration actually did use their delegated authority to add Libya, Somalia, and Yemen to list of countries covered by the restriction of the visa waiver program; only Iraq, Syria, Iran and Sudan had been on the list before.

    So if this power, authorized by act of Congress and delegated to the executive, to discriminate by national origin in a national security context, was illegal then it wasn’t something that Congress or the courts noticed at the time (although that February 2016 designation itself was noticed at the time by the groups affected by it).

    Again, I don’t think it is healthy that Congress does this sort of thing. It would be better for everyone if Congress reassumed its Constitutional responsibilities instead of offloading them to the executive.

    Gabriel Hanna (61adec)

  4. 5. One reason to prfer the DC over Foxnews: thw video segments are accompanied by a written report so you dont have to open the video.

    Is whoever wrote Bill’s speech still sentient or a Dem? Thats their Luke Skywalker. More likely it was a rhetorical bone throw on the heels of proposition 187.

    urbanleftbehind (847a06)

  5. David French also clarifies the ground.

    narciso (d1f714)

  6. not a lawyer but seems trump took terrorist prevention act of 2015 that restricted visa waivers and rolled it into a 120 day ban for those same 7 countries. If there was no legal objection then, why now since it is only temporary?

    fran g (da3dfc)

  7. The selection of Bier v McCarthy as the opening act for this weeks performance of The Ninth Justice is acceptable as political theater. The executive proficiency demonstrated in the roll out of the EO reflects the competence which made the Taj Mahal Casino what it is today.

    I’m really not sure whether I’m watching low melodrama or pure farce this week.

    Rick Ballard (1c0700)

  8. Except bier’s apparently doesn’t consider legislation that came out of his own committee

    narciso (d1f714)

  9. Young refugees protesting their desire to enter the US and add to our vast tapestry of ethnicities:

    https://2.bp.blogspot.com/-ttAHOJgB5Rs/WI3nV813yjI/AAAAAAABFKg/qVgS1r63VH41q-AL9vElIrJ-5GsM2AgQQCLcB/s1600/1%2B1%2B140811161919-nr-laporte-boy-poses-severed-head-00001808-story-top.jpg

    Damn that Trump from stopping these poor children. Damn him!

    Rev. Hoagie® (785e38)

  10. Lots to chew on here, so I’m going to take individual bites, not necessarily in the order which the OP addresses them:

    First, the reference to the Visa Waiver Program.

    I think what McCarthy is arguing is that the Visa Waiver Program involves two actions taken by Congress which, by implication, at least tacitly allow the Executive Branch to make determinations on allowing/not allowing entry into the US by a classification based on national origin.

    I would note (I don’t think McCarthy does, and Patrick doesn’t address) that the Visa Waiver Program seems to me to be contrary to part of the language from 1965 Amendment which prohibits any person from receiving a “preference or priority” based on their national origin. The whole point of the Visa Waiver Program was to create a list of countries which satisfied the various requirements of the statute, and the nationals of those countries are allowed entry into the US even if they lack a visa to do so. So, those people are given a “preference” based on their national origin — which seemingly violates the text of the 1965 statute.

    With regard to what McCarthy is arguing, his point it seems to me is that there is a section in the Visa Waiver Program which 1) excludes from eligibility persons who nationals of Syria and Iraq; or 2) who are nationals of any country designated by the Sec. of State as having supported acts of international terrorism under a separate authorization of law (50 USC Sec. 4605(j).

    I believe all 7 countries identified by Trump’s order have already been designated by the Sec. of State as state sponsors of terrorism under 4605(j), and I think this is the purpose of the reference to the Visa Waiver Program statute in Trump’s order.

    The point McCarthy is making is that Congress, in the Visa Waiver Program, has authorized the Executive, through the Sec. of State, to make a determination that nationals from certain countries pose a threat to the national security interests of the US, and to adjust the entry requirements for nationals from that those countries vis-a-vis the entry requirements for nationals of other countries under the terms of the Visa Waiver Program.

    Since this “discrimination” for national security purposes has been authorized, in the same way one would “by implication” amend the President’s power under the 1952 statute as a result of the 1965 Amendments, one would also “by implication” amend the limitations of the 1965 Amendments as a result of the Visa Waiver Program, as it authorizes the President to discriminate on the basis of national origin with regard to Syria and Iraq explicitly, and any other country identified by the Sec. of State as a supporter of terrorism — a clear delegation of authority by the Congress to the Exec. Branch in the VWP.

    shipwreckedcrew (56b591)

  11. some national origins (great cultures) are better than others (crappy ones)

    happyfeet (28a91b)

  12. Greetings:

    Several nights back, Judy Woodruff of the Progressive (née Public) Broadcasting System’s “NewsHour” program had a gentleman on from the Cato group to instruct us about immigration. She seemed quite pleased with the result. I forget who the other instructor was but he seemed okay with immigration in all its current forms too.

    11B40 (6abb5c)

  13. yay America!

    President Trump says these new safety rules don’t apply to green card people

    happyfeet (28a91b)

  14. Greetings, happyfeet: ( @ 13 (28a91b) —1/29/2017 @ 7:47 am )

    Back during my Ecomonics studying days, I came across something called Gresham’s Law. It had to do with when a society changes from metal money, gold, silver, etc., to paper money. The poetic version of the law says that, “Bad money drives out good.” meaning that people tend to hoard the metal money (keep it out of circulation) and use the paper. Wit that I be, I expounded a corollary that went, “Bad culture drives out good.” Feel free to use as you may.

    11B40 (6abb5c)

  15. this far and no further mi amigo

    happyfeet (28a91b)

  16. in my culture chicken breasts are on sale at mariano’s

    back later

    happyfeet (28a91b)

  17. I believe David French provides a very good précis concerning the underpinnings of the current situation. I read it first to gain perspective, then re-read McCarthy and our esteemed proprietor’s rebuttals. Finally, Ship and Gabriel do a very good job of unpacking the laws granting the Chief Executive the power to act as he has. I am bereft of any knowledge on the subject, thus it has taken a good deal of reading to arrive at a conclusion. My own, now, is that the President’s actions seem legal. Further, the blocking of entry to the United States persons from countries deemed hostile to our interests seems, to put it mildly…wise, though I realize this may not be the primary driver here.

    Personally, aside all other considerations, I find the back and forth intellectually grueling, but also a worthwhile exercise – vapid talking points and memes be damned. Now, as I find my head spinning, I shall topple over onto my fainting couch.

    Estarcarus (cd97e1)

  18. IMO the roll out with respect to green cards could and should have been handled much better and with more care and precision by the new admin.

    Gotta give them extra credit, though, for the transparency of the public signing of the EO as compared to the sneaky application of similar temporary immigration actions in the Obama years allowing the clueless media to stay in the dark unless Obama narratives were force fed to them. (See Glenn Kessler)

    But you can’t turn the vast bureaucracy of the USS America around in a day or a few hours. I see some border and Immigration people and DHS claim they did not know enough in advance specifically what was coming down in time, and in order, to prepare their staffs for it and plan how to apply it. That may be true, and appears to be true. But enough people somewhere inside the government knew what was coming and put out an alarm in time to amass teams of ACLU lawyers, facilitate blockades, and alert screeching protesters. That aspect also needs to be addressed.

    elissa (ae868b)

  19. which allow the Secretary of State and the Secretary of Homeland Security to designate the nations that get their visas suspended

    Gabriel,

    Is that what the provisions do?

    Or do the provisions allow the Secretary of State and the Secretary of Homeland Security to designate the nations that are unable to take advantage of a visa waiver program?

    Because those don’t sound like the same thing to me.

    Patterico (a4a3d0)

  20. I would note (I don’t think McCarthy does, and Patrick doesn’t address) that the Visa Waiver Program seems to me to be contrary to part of the language from 1965 Amendment which prohibits any person from receiving a “preference or priority” based on their national origin. The whole point of the Visa Waiver Program was to create a list of countries which satisfied the various requirements of the statute, and the nationals of those countries are allowed entry into the US even if they lack a visa to do so. So, those people are given a “preference” based on their national origin — which seemingly violates the text of the 1965 statute.

    Not only does McCarthy address that (and so do I), that is his entire argument. But it seems to be an argument of analogy, not of a direct delegation of authority. But the analogy breaks down because Congress delegated authority in one area (designate countries not able to take advantage of the visa waiver program) but it does not look to me like a wholesale delegation (pick countries as to which thrrr shall be any visas or Immigration).

    With regard to what McCarthy is arguing, his point it seems to me is that there is a section in the Visa Waiver Program which 1) excludes from eligibility persons who nationals of Syria and Iraq; or 2) who are nationals of any country designated by the Sec. of State as having supported acts of international terrorism under a separate authorization of law (50 USC Sec. 4605(j).

    I believe all 7 countries identified by Trump’s order have already been designated by the Sec. of State as state sponsors of terrorism under 4605(j), and I think this is the purpose of the reference to the Visa Waiver Program statute in Trump’s order.

    The point McCarthy is making is that Congress, in the Visa Waiver Program, has authorized the Executive, through the Sec. of State, to make a determination that nationals from certain countries pose a threat to the national security interests of the US, and to adjust the entry requirements for nationals from that those countries vis-a-vis the entry requirements for nationals of other countries under the terms of the Visa Waiver Program.

    To adjust them any way he likes? Or just to designate countries that are not part of the visa waiver program?

    Patterico (a4a3d0)

  21. Progressives have long been screaming that America is a racist, xenophobic, sexist, homophobic, Islamophobic, colonialist, nationalist country, so given that characterization, shouldn’t progressives be first in line attempting to convince immigrants not to come to such a horrible place?

    Cruz Supporter (102c9a)

  22. Congress saying “the President can choose which countries are not eligible to take part in a program where we relax our usual visa requirements” is not the same, as far as I can trlll, as saying “the president can choose which countries to deny visas to entirely.”

    At best, McCarthy is saying this limited delegation of a tight to discriminate on the basis of nationality is a wholesale repeal of the discrimination ban.

    It is not, as best as I can tell.

    Patterico (a4a3d0)

  23. You mean like this: http://youtu.be/OkJnc0mlhIw

    urbanleftbehind (847a06)

  24. On “Dismissing Textualism”.

    As I noted yesterday in my first response to the previous post, there is further text in Sec. 1152(a) that undermines Bier’s analysis — not only undermines its, but flatly contradicts it.

    Here is the full text of that portion of the statute as it reads TODAY:

    (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.
    (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.

    The non-discrimination provision in Section (a)(1)(A) was added by the 1965 Amendments.

    BUT, the language in Section (a)(1)(B) was NOT. It came later.

    Text of PL 89-236 — October 3, 1965: To Amend the Immigration and Nationality Act:

    “Section 222 of the Immigration and Nationality Act (66 Stat. 175; 8 USC Sec. 1152) is amended to read as follows: “(a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence, except as specifically provided in Section 101(a)(27), Section 201(b), and Section 203; provided, That the total number of immigrant visas and the number of conditional entries made available to natives of any single foreign state under Paragraphs (1) through (8) of Section 203(a) shall not exceed 20,000 in any fiscal year; Provided Further that the foregoing proviso shall not operate to reduce the number of immigrants who may be admitted under the quota of any quota area before June 30, 1968.
    (b) ….
    (c) ….

    All the language after “place of residence” was stricken from the statute in later amendments. There was no (a)(1)(A) and (a)(1)(B), as the statute currently reads, in the 1965 Amendments. These two provisions in their current textual format were the result of the 1996 Amendments, PL 104-208. The portion of that Law making the changes as part of the “ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996″ provides NO EXPLANATION for why the language of (B) was inserted:

    SEC. 633. AUTHORITY TO DETERMINE VISA PROCESSING PROCEDURES.

    Section 202(a)(1) (8 U.S.C. 1152(a)(1)) is amended-

    (1) by inserting “(A)” after “NONDISCRIMINATION.-“; and

    (2) by adding at the end the following:

    “(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.

    Thus, the current Section “B” expressly states that that consideration of national origin in setting procedures for immigrant visa application processing IS NOT prohibited by the statute, i.e., “Nothing in this paragraph shall limit the authority of the Secretary of State ….”

    So, what does the EO do?

    Section 1: Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.

    Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit… (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review ….
    (c) … I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order….(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 … 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 … from countries that do not provide the information requested ….(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

    Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.

    I think everyone gets the point.

    Until I see something that support’s Bier’s naked claim in his piece — as posted by Patrick yesterday in a comment — that there is some textual basis for claiming that the language of subparagraph (B) doesn’t EXPRESSLY allow for national origin discrimination with respect to the procedures for processing immigrant applications, I think the “textualism” argument supports the EO.

    shipwreckedcrew (56b591)

  25. I don’t think “you can determine the procedures” is meant to swallow subdivision (a) whole, i.e. “and part of your ‘procedure’ can be to say that everything we just said about nondiscrimination is out the window.”

    Patterico (115b1f)

  26. Which is the point that Bier made, as I noted yesterday. In effect, he already responded to your argument about procedures in his piece. So, rather than repeating your argument, I’d like to see you respond to his response.

    Do I need to repeat it or can you find it?

    Patterico (115b1f)

  27. I’ve been trying since last night to get someone to explain to me precisely what this 2015 law does and how it authorizes what Trump did. There are, I think, two options:

    1. It literally authorizes what Trump did by giving him specific authority to take the actions he took. If this is your position, can I get some statutory language that says that? Do not link Seth Frantzman in your answer.

    2. It authorizes what Trump did by analogy, by authorizing a president to designate certain countries to receive lesser treatment vis a vis the issuance of visas, implicitly saying . . . what? That the discrimination ban is off?

    I think Hanna was claiming #1 in the first comment. I’d like the language that says that.

    I think McCarthy and SWC are arguing #2. But that’s like saying that if I tell my son he can stay up an extra hour tonight if he decides to, in order to walk the dog, that I have thereby delegated all decisionmaking to him in the future as to when he needs to go to bed. Not so.

    Patterico (115b1f)

  28. Patrick at 22 and 24:

    IMO the “briar patch” here is the result of going down the path of “amendment by implication”. The idea that the broad and expansive authority given to the Pres. under 1182(f), which depends only on a finding solely committed to the discretion of the President that continued entry would be “detrimental to the interests of the United States”, was BY IMPLICATION amended in 1965 — in a statute that deals not with “entry” but rather with “issuance” of visas (to raise a Textualism argument that Bier just tosses aside) — leads one to where McCarthy finds himself.

    In the Visa Waiver Program statute the Congress expressly conferred upon the President the authority, based on national security concerns explicitly with regard to Syria and Iraq, but also with regard to any other country determined by the Sec. of State to support terrorism, to discriminate against those nationals of those countries based on their place of birth or residence.

    The argument Bier makes is that 1182(f) was amended by implication in 1965. The Admin would argue that the 1965 amendments were amended by implication by the Visa Waiver Program where national security interests are implicated — in a manner CONSISTENT with the authority conferred in 1182(f) originally.

    Has the 1965 Amendments ACTUALLY amended 1182(f), that would be a weak argument. But they didn’t.

    I can imagine a judge looking at the Plaintiffs’ attorney and saying “Is the Exec., in exercising the authority expressly conferred by 1182(f) obligated to scour the millions of pages of federal statutes looking for language from Congress that, “by implication”, impinges on the express authority granted to him there? If Congress wanted in 1965 to limit the 1182(f) authority which is based on a finding that Congress committed soley to the President that “entry is detrimental to the national interests” of the United States, couldn’t it have just said so? But it didn’t. So what do we make of that? Isn’t Congress able right now to amend 1182(f) and make application of 1152(a)(1)(A) expressly applicable? What do we make of the fact they haven’t?

    I remain unpersuaded that Bier really knows what he’s writing about.

    shipwreckedcrew (56b591)

  29. Is the President allowed to bar anyone from entry into our country. I mean for farks sake do we have a border or don’t we?

    papertiger (c8116c)

  30. 26. By “procedures” we’re talking about things like not issuing visas in embassies or consulates in certain countries, or screening requirements.

    This is also only talking about visas for the purpose of immigration (permanent residence) as most often occurs in the case of marriage or other relationship to a U.S. citizen.

    What it does do, is say, for instance, that a citizen of Iran now residing in France cannot be refused an immigrant visa on the basis that he or she is a citizen of Iran. State Department and other immigration issuing officials are to pay no attention to this fact in itself.

    As for why this changed:

    Before the 1965 law, nationality, or since 1929, place of birth, was an important criterion. There were by nation by nation quotas for countries outsde the western hemisphere from July 1, 1921 through December 31, 1967.

    There was no quota from the western hemisphere, by the way, if a person was born in a place taht was now an independent country, so for instance people from Jamaica could freely immigrate to the United States, provided they met all the “quality” requirements (basically no public charge and no job in advance, which tends to mean having a sponser) starting from the day it became independent in 1962 till January 1, 1968. (Before that, they were British until 1952, and then had the tiny 100 people per jurisdiction minimum quota established during World War II) There was no numerical restriction, of course, on Canada, or Mexico or Cuba, which were always independent. When Jamaica became independent in 1962 the free migration to the United Kingdowm was cut off. The same thing happened in Surinam (Dutch Guinea) with regard to the Netherlands, and hundreds of thousands of people, about one third of the population, fled to the Netherlands in 1975 when they heard that Surinam was about to become independent – quite rightly as matter of fact, as it shortly became a dictatorship, and by the 1980s there was a civil war.

    The quota for Ireland was always larger than the demand, (they were based on the 1890 Census after 1924) so Ireland also really had free immigation to the United States till 1968. You only had “illegal Irish,” which was a particular concern of senator ted Kennedy (D-Mass.) after that.

    The 1965 law instituted two new quotas, one for all the Eastern hemispehere and one for all the Western hemisphere, and these separate quotas may now be gone, and there’s only workwide quotas for certain categories. Marriages and clergy (at least) have no quota. Clergy were and are outside the quota system since 1927.

    Sammy Finkelman (dec35d)

  31. I think your argument at 27 overstates what the EO has done.

    It has temporarily suspended the entry based on a determination that the processes now in place — i.e., the processes put in place and operated by the prior Admin — are not sufficient, and continuing the processes now in place would be “detrimental to the interests of the United States.”

    So he has suspended entry, and upon a completion of a review of the processes during a 90 day window, modified processes will be substituted.

    Those modified processes might impose such restrictive limits with regard to those 7 countries that a de facto ban on entry results. But as set up, the failure that causes the de facto ban will be on the foreign country, i.e., its inability to provide information about its nationals which the Sec. of State determines is necessary to process the visa application.

    And, to the extent you want to argue that (B) swallows (A), that fault rests with the drafter of (B) and (A), not the Admin.

    The language of (B) couldn’t be more clear — NOTHING in this paragraph shall be construed to LIMIT THE AUTHORITY of the Sec. of State….”

    The import of this language is that the Sec. of State CAN based decisions about the process of issuing immigrant visas on the nationality, place of birth and place of residence of the applicant.

    Where I would break with the Admin is if the EO had simply established an indeterminate suspension of entry, untethered to any procedural review, or if the Admin simply ignores the time limits and process requirements set forth in the EO and allows it to remain in place well beyond its specific terms.

    But as drafted, I think its squarely within the authority granted by 1182(f) and 1152(a)(1)(B).

    shipwreckedcrew (56b591)

  32. Hmmm…

    On Thursday, when President Obama ended the “wet foot, dry foot” policy allowing any Cuban who reached U.S. shores to be granted resident status as a refu­gee, he merely followed his unconditional support of the Raúl Castro regime to its logical end. Now comes the second repercussion feared by Cubans: Obama strips them of their refugee status just as he heads out the White House door. The Castro government is normal; no more special treatment for Cubans. Cubans are no different from Haitians, or Mexicans or any other migrants. End of story.

    With strokes of his pen, Obama has not only stripped Cuban boat people of their refugee status but also left behind a radioactive stink bomb as a gift for his successor.

    Obama’s undoing of wet foot, dry foot could be quickly reversed by President Trump. Like almost every other aspect of Obama’s Cuba policy, this change in the law has taken place through executive order. Congress has been ignored, and so have some laws, especially the Cuban Democracy Act of 1992 (the Torricelli Law) and the Cuban Liberty and Democracy Solidarity Act of 1996 (the Helms-Burton Act).

    But consider the traps Obama has set for Trump. If Trump does nothing, he implicitly condones the notion that Cubans are not the victims of a repressive regime. This could anger many of his supporters. If Trump reverses Obama’s policy, he implicitly links the issues of human rights abuses and immigration. If Cubans can be refugees deserving of special protections, why not Syrians? Why is Trump cherry-picking his victims of repression? This could create a firestorm of controversy and anger some of his supporters, too. Obama has achieved two ends here. First, he has completed the utter betrayal of the Cuban people — a legacy move set in motion two years ago. Second, he has burdened Trump with a no-win situation with the potential to seriously tarnish or weaken his presidency right from the start.

    https://www.washingtonpost.com/opinions/global-opinions/wet-foot-dry-foot-wrong-foot/2017/01/13/cf737f90-d9db-11e6-b8b2-cb5164beba6b_story.html

    As of now, Trump has not reversed Obama’s Wet Food Dry Foot edict and this article coupled with yesterday’s “7 nation” EO may help explain why.

    elissa (ae868b)

  33. Let’s go from the other direction. We hear about vetting. What are they screening against? What is the criteria for banning a foreigner from entering the US? Do they have to be convicted of crimes in their native land?
    What if their native country is a criminal enterprise in and of itself?

    What is to stop say communist China from sending an entire army, one at a time, with the proper paperwork, via commercial airline, to remuster on the tarmack at the Los Angeles airport?
    Bit pricey for an invasion force, but it save the wear and tear of a Malibu Beach D-day style assault.

    papertiger (c8116c)

  34. That wax the advance force for the Japanese invasion of the phillipines , tiger, that is how spetsnaz operates

    narciso (d1f714)

  35. The sovites deployed the zenith unit of same, to terminate the Afghan president, they tried to do the same in chechnya but dudayev esvaped

    narciso (d1f714)

  36. Let’s say the Mexican’s got a grip on the drug lord situation and everyone of their felons were brought into custody all at once, only they’ve run out of cots and short of prison guards, what’s to stop them herding the whole lot into Arizona? Anything?

    Would we defer to the Burger Court rulings and accept them with open arms?

    papertiger (c8116c)

  37. I think the argument is that when a president bars someone from immigrating to the United States on the grounds that it is detremental to the interests of the United States, and the basis for that is that he or she is a citizen of a certain country, it’s got to be truthful, or at least rational, because the president is otherwise barred from considering nationality as a grounds.

    And the lawyers might further argue, that, irrespective of the 1965 amendments the declaration of teh president has got to be truthful, or at a reasonable belief. But certainly with it.

    Now, a diplomatic war with another country might be a reason. Saying they can’t be vetted might not be a reason.

    This is actually the fault of FBI Director James Ccmey. James Comey, I think it was, who claimed that Syrian refugees couldn’t be vetted.

    http://www.politifact.com/florida/statements/2016/aug/12/carlos-beruff/fbi-admitted-it-cannot-properly-vet-middle-eastern/

    At the committee meeting, U.S. Rep. Bennie Thompson, D-Miss., asked Comey if there was concern that the FBI could miss a potential terrorist infiltrator because intelligence databases may not contain complete information on every refugee.

    Comey agreed, saying the procedure isn’t perfect, because it relies on checking for criminal records or other nefarious activity.

    Now it may not have been clear to many people what he meant.

    Comey said this thing about not being able to vet because part of the standard vetting procedure is to ask the country in which people requesting visas are citizens of, or have resided in, if they have a criminal record, or are terrorists, and what Donald Trump basically is doing is taking the bureaucrats at their word.

    The basis for thsi is the idea that the governments of Syria, Iran, Sudan, Libya, Somalia, Libya and Iraq either can’t be trusted and might even give documents to a terrorist, or are incapable of telling us whether or not one of their citizens is a member of ISIS or some other terrorist group.

    Of course the government of Pakistan can’t be trusted either, and for that matter, Russia, and also Saudi Arabia, except that Saudi Arabia quietly stops them from coming; and Nigeria and Afghanistan can’t tell, and no government has perfect knowledge, and there are many people, especially from Iraq, whom we know darn well cannot possibly be members of ISIS, and THAT also applies to Syrians who have been living outside the country for two or three years in refugee camps, who, of all Middle east Moslems, are the people we have the least reason to worry about because they’ve been interviewed time after time and have, in effect, been quarantined, and they probably don’t like ISIS. Just like no Islamic terrorist group would or could recruit a Christian, it wouldn’t send any of their recruits to wait in a refugee camp where they have no idea where tghey might be going and how long it might take.

    Sammy Finkelman (dec35d)

  38. If that name rings a bell?, his first name as dzokhar, like the younger tsarnaev brother

    narciso (d1f714)

  39. i haven’t felt this safe from terrorists in a long long time

    we’re really gonna have to guard now against complacency

    (thank God Mr. President Trump’s not a complacent kinda guy he’s got our backs against these terrorists!)

    happyfeet (28a91b)

  40. Reminder to people (especially hysterics from media) who approach everything in politics as endless group therapy rather than as problem resolution: This is a temporary moratorium that inconveniences a few people who want to come here as guests of the American people.

    Reince Priebus

    “The fact of the matter is that 325,000 people from foreign countries came into the United States yesterday, and 109 people were detained for further questioning. Most of those people were moved out. We’ve got a couple dozen more that remain. I would suspect that as long as they are not awful people, they will be moved through today. If they’re folks that shouldn’t be in this country, they’re going to be detained. So we apologize for nothing here.”

    elissa (ae868b)

  41. why should he apologize for stopping obama’s creepy muslim (sp?) terrorist importation program

    it is so good what he did

    it’s cookie time for Preside Trump!

    happyfeet (28a91b)

  42. *President* Trump i mean

    happyfeet (28a91b)

  43. papertiger (c8116c) — 1/29/2017 @ 11:08 am

    We hear about vetting. What are they screening against? What is the criteria for banning a foreigner from entering the US? Do they have to be convicted of crimes in their native land?

    The toughest screening is for immigration purposes. Visitors are mostly either checked against a watch list, or interviewed in an effort to determine that they do not intened to remain in the United States.

    If they have previously travelled to other countries, and/or have money or jobs in their country, have family ties, and can give a good reason for their visit that’s usually enough, and students at typical college age get less questioning, and wherever visas exist the officials tend to turn down a certain fraction of applicants, on a more or less random basis, whose randonmess and arbitrariness is disguised by not allowing them to apply to anotehr officer without noting that they were turned down before.

    Only immigrants get the full Monty. Now you might think it is visitors, who have less to lose, who need the full monty and immigrants don’t need it so much, since they have more to lsoe, and you would be right, but that’s the way it is.

    Sammy Finkelman (dec35d)

  44. Mariano’s also has nice boneless arm chuck roasts on sale. There’s nothing quite like an aromatic pot roast slow cooking in the oven on a depressing gray winter’s day. Well, until you take that succulent meat out of the oven to eat it and savor its incomparable yummy splendor.

    elissa (ae868b)

  45. What if their native country is a criminal enterprise in and of itself?

    That is exact;y the kind of people who most likely have legitimate claims to asylum, and you’d want people over here, so you’d get warning.

    The 9/11 terrorists were not allowed to travel alone. They also were carefully vetted by the terrorist leaders.

    What is to stop say communist China from sending an entire army, one at a time, with the proper paperwork, via commercial airline, to remuster on the tarmack at the Los Angeles airport?

    Some of them would defect, if we made the fact that they could safely defect known. Even North Koreans would defect. Which is why nothing like this has ever happened. The closest you came was 8 Germans on a submarine and one or two of them promptly defected.

    https://en.wikipedia.org/wiki/Operation_Pastorius

    Realizing that the mission was going to be doomed after the encounter with the Coast Guard, Dasch decided he had a secret of his own. The day after the landing at Amagansett, he called Burger, the most guarded and disciplined member of the team, into the upper-story hotel room the two men shared. He walked over to the window and opened it wide. “You and I are going to have a talk,” Dasch said, “And if we disagree, only one of us will walk out that door—the other will fly out this window.” He then revealed the truth to Burger: he had no intention of going through with the mission. He hated the Nazis and wanted Burger on his side when he turned the entire plot over to the FBI. Burger smiled. Having spent seventeen months in a Nazi concentration camp, his own feelings for the party were less than warm. He too had been planning to betray the mission. They agreed to defect to the United States immediately.

    …On 15 June, Dasch phoned the New York office of the FBI from a pay-telephone on Manhattan’s Upper West Side explaining who he was and asked to convey the information to FBI Director J. Edgar Hoover. When the FBI agent was trying to figure out if he was talking to a crackpot, Dasch hung up. Four days later, he took a train to Washington, D.C. and checked in at the Mayflower Hotel. Dasch then walked into the FBI’s headquarters carrying a briefcase, asking to speak with Director Hoover. Dasch bounced from office to office until finally Assistant Director D.M. Ladd, the agent in charge of the manhunt, agreed to humor him with five minutes of his time. Dasch angrily repeated his story after he was dismissed as a crackpot by numerous agents. He finally convinced the FBI by dumping his mission’s entire budget of $84,000 on the desk of Assistant Director D. M. Ladd.[15] At this point, he was taken seriously and interrogated for hours.[16] Besides Burger, none of the other German agents knew they were betrayed. Over the next two weeks, Burger and the other six were arrested.

    The probability of a defection approaches certainty as the number of me on the mission rises over ten. But you have to pay attention. And make them not fear death.

    What you don’t want is to be completely cut off from the other country.

    Sammy Finkelman (dec35d)

  46. That’s all good Sammy, but when those immigrants are getting the full monty, What is the full monty looking for?

    papertiger (c8116c)

  47. Let me put a finer point on it. My criteria for the “full Monty” would be if you think rape is a capital offense, where the victim is subject to the penalty because there weren’t four women present as witnesses, then you are not welcome in my country. That’s one of my criteria.

    Not the only one. Just one of them.

    papertiger (c8116c)

  48. Is the President allowed to bar anyone from entry into our country. I mean for farks sake do we have a border or don’t we?

    No. Yes. Two separate questions.

    Also, the president can’t have you taken out and shot, but we DO have an army.

    Kevin M (25bbee)

  49. oh shoot i missed that

    i don’t really understand groceries very well i just know when they say there’s a limit on how many you can buy you should get some

    happyfeet (28a91b)

  50. UPDATE: At the risk of making a long post even longer and harder to get through, I think that the best argument for the legality of the executive order is the argument (made by my commenter shipwreckedcrew) that the 1965 non-discrimination provision (section 1152(a)) did not explicitly amend the language of the 1952 broad grant of authority to suspend entry pursuant to section 1182(f). Bier argues that, because the 1965 provision came later, it limits the broad grant of authority given in 1952, and did not have to do so explicitly.

    I think Bier’s argument is even more persuasive when you note that the non-discrimination provision in section 1152(a) says it applies “[e]xcept as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” In other words, Congress carved out specific exceptions to the general nondiscrimination rule, and section 1182(f) was not one of the listed exceptions. That analysis strongly indicates that the rule of section 1182(f) is not an exception to the nondiscrimination rule in section 1152(a).

    The counterargument is that if Congress wanted to change the broad grant of authority in section 1182(f), they would have rewritten section 1182(f). I think this is wrong, because lawmakers enact broad principles all the time without specifically rewriting every other previous law to which the broad provision might apply. If Congress says: “the federal government will from this point forward no longer use race as a factor in employment decisions” then Congress doesn’t have to rewrite or repeal every previous provision in law that might have conflicted with this new and broad provision. It would be better practice to do so, but they don’t have to.

    The same analysis applies here: the later, broader provision, not carving out an exception for the President’s previous broad grant of authority, limits that broad grant.

    Until, that is, Congress says otherwise.

    Patterico (115b1f)

  51. If you come from a place where religion is compulsory, conversion is a capital offense, and you are okay with that, then you aren’t welcome in my country.

    That’s another of my criteria.

    papertiger (c8116c)

  52. Considering that reasonable people (and others) are still arguing this, I stand by my argument that there is no right or wrong, just what the courts end up saying. Perhaps if I was a lawyer, I would enjoy the hair-splitting arguments more, but past a certain point it becomes obvious that the law is simply a mess and courts have to sort it out.

    I observe the administration, um, refined the order to allow green card holders re-entry regardless of nationality, since that was something nearly everyone found unlawful.

    Kevin M (25bbee)

  53. And, to the extent you want to argue that (B) swallows (A), that fault rests with the drafter of (B) and (A), not the Admin.

    Except that one interprets a statute in such a way that no provision is assumed to be surplusage.

    If the interpretation allows B to swallow A, the interpretation might be flawed.

    A contrary interpretation, that interprets procedures as procedures rather than blanket authority to write A out of the law, makes more sense to me.

    Anyway. I think we have milked this lawyer stuff for all it’s worth. It’s up to the courts now.

    Patterico (115b1f)

  54. Until, that is, Congress says otherwise.

    Or the executive pushes the envelope.

    You present two reasonable interpretations. The president’s counsel (being charitable) chose the one you don’t favor. So sue him.

    Kevin M (25bbee)

  55. Considering that reasonable people (and others) are still arguing this, I stand by my argument that there is no right or wrong, just what the courts end up saying. Perhaps if I was a lawyer, I would enjoy the hair-splitting arguments more, but past a certain point it becomes obvious that the law is simply a mess and courts have to sort it out.

    Is that how you felt about Halbig and King v. Burwell? Do you now think “established by the state” means “established by the Secretary of Health and Human Services” because a dishonest court majority said so?

    It’s attractive, when you like a policy, to grasp onto any halfway reasonable-sounding argument and say, hey, at a minimum there is an argument here.

    But lawyers ALWAYS come up with arguments. And partisans will always seize on those arguments that support what they like (see how the left seized on the absurd nontextual arguments in King v. Burwell). So you have to be very careful about throwing up your hands and going along with a set of arguments that just happens to support your policy preference.

    My policy preference is that this ban, except as it extends to green-card holders and people who already had their rights determined, should be our policy if we can pass it in a proper and constitutional manner.

    But I care about that last conditional phrase, very much. That makes me seem quaint and rule-bound to some. But it goes to the heart of how I feel about the legitimacy of political power.

    Patterico (115b1f)

  56. OT: Anyone who is upset with this blog, or the supposed deterioration of the comments, should feel free to visit Instapundit for a bit. The comments on topics like this are pretty much on par now with Politico. Sunglasses guy would be a Solon compared to some of them.

    Kevin M (25bbee)

  57. Or the executive pushes the envelope.

    You present two reasonable interpretations. The president’s counsel (being charitable) chose the one you don’t favor. So sue him.

    Quite a different attitude from the Obama years.

    Patterico (115b1f)

  58. Discus is dark magic conjured on Mt doom, but that has been stipulated

    narciso (d1f714)

  59. I think the comments on this have been at a high level, frankly.

    I’m far more likely to go to the Jury blog exclusively on a post where people are just being silly, trollish, personally nasty, and unreasonable here. I don’t see that here on this topic at all. It may have something to do with the very complex and intricate nature of all the moving parts.

    Patterico (115b1f)

  60. otoh you never really appreciate how Christian you are until you sit next to a Muslim on a bus ride.

    papertiger (c8116c)

  61. Is that how you felt about Halbig and King v. Burwell? Do you now think “established by the state” means “established by the Secretary of Health and Human Services” because a dishonest court majority said so?

    I am CERTAIN that that is how courts will read it and how it will be enforced. There is no underlying reality to the universe.

    It is not whether I like it (and I ABHOR the way the courts were abused to get to marriage equality), but what it is.

    In the current situation, there are two competing readings of a pair of statutes, at least one of which is unclear in its application. You take one as being RIGHT and others who have no particular bias in the case (something you cannot say) take the opposite view. My position is that, HEY, CAN’T DECIDE? This is what courts are for. King and Halbig weren’t mysteries. This is.

    BTW, I don’t particularly LIKE the policy, but I can see that the blunt club called government might need to do things that way. Don’t make assumptions about my beliefs. I do think that EVERYONE coming from countries with significant fundamentalist activity should be carefully questioned. Just like people coming from Peru always get their bags torn apart.

    Kevin M (25bbee)

  62. Quite a different attitude from the Obama years.

    Note my use of the word “reasonable”

    Kevin M (25bbee)

  63. Iran, Syria and Sudan are listed as sponsers of terrorism, and Libya, Somalia and Yemen are “countries of concern” all with non-terrorists official governmets but parts of the country under terrorist control) and Iraq probably falls in the same category, slthough it was not desigated a country of concern.

    Trump did three things:

    1) Barred the admission of Syrian refugees to the United States indefinitely.

    2) Stopped the admission of all other refugees for 120 days, whle teh question of whether any need additional screening is investigated, while the total for eh year 2017 is redced from 110,000 to 50,000.

    3) Stopped citizens of seven countries: Iran, Syria, Sudan, Libya, Somalia, Yemen amd Iraq fro entering the United States for 90 days. During the 90 days the Trump Administratioon will assess if the governments of these countries are providing sufficient information about citizens seeking visas to enable the U.S. government to assess whether they pose a terrorist risk. And wat that means is that the career bureacrats will stick out their necks and say it is good enough. If it is not satisfactory after 90 days they will be given a further 60 says to comply.

    Of all of these seven countries, the country that sends the most people to the United States is Iran, 35,000, and there are around 1 million people from Iran living in the United States.

    While Iran is a sponsor of terrorism, they don’t seem to use their own nationals, except diplomats and members of the army or Revolutionary Guards or others employed long term by the government.

    Iran seems to have imposed a retaliatory ban on Americans entering Iran. It is speculated that this may be a test for Iran. If it doesn’t co-operate on terrorism, there may be hard line against it on many other things.

    4) Dual nationals also are included, but the United States may not really know if someone is a dual national, and neither sometimes may the individual, as a dua national doesn’t have to have aassport from that country. Dual nationals previously, in the last year, were excluded from the visa waiver program, as well as anyone who had visited Syria or Iraq (even places not controlled by ISIS and eevn for employment) but thsi has been done mainly on the honor system.

    5) This 90 day ban may not apply if the visit will be of particular benefit to the United States, like a member of the Iraqi military undergoing training, or diplomatic personnel, or someone from Iran who might win an Oscar.

    6) If a person is from a minority religion in the country he or she is a citizen of, they get priority in admission as refugees. It is not clear if Sunnis and Shittes might be consderdd separate religions.

    Sammy Finkelman (dec35d)

  64. Courts:law :: box:cat

    Kevin M (25bbee)

  65. otoh you never really appreciate how Christian you are until you sit next to a Muslim on a bus ride.

    Try it as an atheist.

    Kevin M (25bbee)

  66. There were examples of compulsory insurance purchase beside health care. Auto insurance for instance, which coincidentally was originally justified due to exponential increase of illegal alien drivers stuffing up the legal system with hit and runs.

    I think an unwillingness to rule those as invalid fed the Burwell decision.

    Or was it just pulling a rabbit out of a hat?

    papertiger (c8116c)

  67. 48. papertiger (c8116c) — 1/29/2017 @ 11:50 am

    That’s all good Sammy, but when those immigrants are getting the full monty, What is the full monty looking for?

    A lot of irrelevancies. In actuality, whatever it is that they look for.

    The problem that the Trump exective order is allegedly directed to is the possibility that a government might falsely give someone a clean bill of health or false documents, or the presence of gaps in the government’s knowledge, i;e. someone could have done X and they wouldn’t know.

    But it is not like you really can’t tell if someone has been an active terrorist or not. There are all kinds of corroborating things that would show what somebody has been doing or not doing. For one thing, Islamic terrorists who have undergone any kind of training, invariably cut themselves off from family. And it is really hard to invent a plausible legend. Anyone smart enough to maintain that is also not so stupid as to become a low level terrorist.

    Israel does pretty well with cross examining visitors, and they don’t get co-operation from all countries. Of course, some kinds of passport holders are excluded or almost excluded but some others are not.

    The trick to the cross examination is asking people exactly where they are going and sometimes, indicating that one answer isn’t good but the questioner seems to be unclear as to what the person they are interrogating said, and gives them a chance to change their answer, which if it haoppens too much is a dead giveaway.

    Sammy Finkelman (dec35d)

  68. There were examples of compulsory insurance purchase beside health care. Auto insurance for instance, which coincidentally was originally justified due to exponential increase of illegal alien drivers stuffing up the legal system with hit and runs.

    If I don’t drive, auto insurance isn’t compulsory.

    Kevin M (25bbee)

  69. Yes Obama couldn’t tell the difference there either.

    narciso (d1f714)

  70. It seems like just months ago that the Democrats were pushing for no-fly lists without due process.

    Kevin M (25bbee)

  71. Also, I am positive that mandatory auto insurance has nothing to do with illegal aliens. Heck, illegals are probably exempt in California.

    Kevin M (25bbee)

  72. I see that Canada’s Trudeau says Canada will accept all these refugees. I’m sure this will boost his popularity. I wonder if he’ll take some of our undocumenteds as well.

    Kevin M (25bbee)

  73. toronto’s already a terrorist majority city

    you can’t find any funnel cake there and the streets are filthy with allah graffiti and gnawed-on date pits

    :(

    happyfeet (28a91b)

  74. I’m away from my computer now so long posts are impractical. But I was able to get past the paywall of the NYT and read the entire piece by Bier. I’m less impressed by what he wrote than I am by the attempts of Patrick to fend off McCarthys rebuttal.

    Basically Bier’s entire piece relies on a straw an, which he then attempts to knockdown. In his final paragraph he writes “If Mr. Trump [note the unwillingness to refer to him as “President”] can legally ban an entire region of the world…”

    I can’t get beyond that because the EO does no such thing.

    Further his piece is devoid of any support for HIS claim that the 1996 Amendment, which I’ve posited as completely undermining the basis for his claim the EO is illegal, had some unexpressed and hidden desire on the part of Congress that the “wanted the discrimination ban to hold some force.” Those are his words and he provides no cite, quote, or link that substantiates his characterization.

    In fact, the 1996 amendment was passed by a GOP confess in response to a DC Cir court decision invalidating an INS reg that required Vietnamese living in Hon Kong to return to Vietnam in order to apply to immigrate, but allowed other nationalities living in Hong Kong to apply from Hong Kong. It did so on the basis that the reg treated Vietnamese in Hong Kong different from every other nationality living in Hong Kong, in violation of 1152(a)(1).

    So in 1996 Congress amended 1152(a)(1), but adding the section saying the no discrimination provision does not apply to Sec of State decisions about how it carries out the application process.

    No fair reading of the EO can call it a “ban”. It’s a suspension of the old procedures while new procedures are put in place.

    It’s temporary and it does not ban a “whole region” of the world. Several countries that are majority Muslim and are contiguous neighbors of the 7 suspect countries do not fall under the EO.

    Bier is a poseur who doesn’t understand what he’s writing about but his thesis fit the editorial POV of the NYT editorial staff.

    Shipwreckedcrew (af0b8c)

  75. 42-Elissa

    “Reince Priebus
    “The fact of the matter is that 325,000 people from foreign countries came into the United States yesterday, and 109 people were detained for further questioning. Most of those people were moved out. We’ve got a couple dozen more that remain. I would suspect that as long as they are not awful people, they will be moved through today. If they’re folks that shouldn’t be in this country, they’re going to be detained. So we apologize for nothing here.”

    I almost can’t believe how much I like Trump’s crew so far.

    Harkin (afc7a6)

  76. ==I see that Canada’s Trudeau says Canada will accept all these refugees.==

    LOL. If you saw my first person Canada hardline customs/guest Visa story on the other thread, young Mr. Trudeau may wish to double check his country’s very strict immigration laws and Visa requirements before he makes such brash pronouncements.

    elissa (ae868b)

  77. 35- What is to stop say communist China from sending an entire army, one at a time, with the proper paperwork, via commercial airline, to remuster on the tarmack at the Los Angeles airport?

    Nothing, I guess. Only, how are the weaponry and supplies for this entire army suppposed to get here? In the overhead bins?

    gwjd (032bef)

  78. Nothing, I guess. Only, how are the weaponry and supplies for this entire army suppposed to get here? In the overhead bins?

    Geez, I don’t know. How does 1.4 million pounds of drugs (that they know of) get smuggled in every year? How do 10 million fire arms end up in the hands of criminals?

    Or, Fast and Furious? The Democrat Party arming fellow travelers? The ACLU lining up new clients? #BLM demanding gun rights?

    Rev. Hoagie® (785e38)

  79. gwjd (032bef) — 1/29/2017 @ 1:24 pm

    , how are the weaponry and supplies for this entire army supposed to get here? In the overhead bins?

    In containers aboard ships, labeled as watches.

    This brings out something. You need both the people and the weapons. Getting them both into the United States is a problem. tghe 9/11 hijackers brought only themselves bit not too many things can work that way.

    Sammy Finkelman (dec35d)

  80. nastypants frau merkel says america should let the terrorist refugees in so they can slaughter slaughter slaughter like how they do in germany

    so let’s just put that idea on the table – maybe draw up a list of pros and cons

    happyfeet (28a91b)

  81. i can think of one “con” already

    happyfeet (28a91b)

  82. papertiger (c8116c) — 1/29/2017 @ 11:55 am

    My criteria for the “full Monty” would be if you think rape is a capital offense, where the victim is subject to the penalty because there weren’t four women present as witnesses, then you are not welcome in my country. That’s one of my criteria.

    That’s not he full Monty – that’s an an extra requirement. It probably can be used with regard to a visa, like a vistor’s visa where the administraton has discretion, but not where there may not be such discretion.

    I’d prefer swearing opposition to the murder of Jewish settlers in the West Bank. The rape thing is entirely theoretical.

    Sammy Finkelman (dec35d)

  83. Germany’s Migrant Rape Crisis

    A group of Serbian teenagers in the northern German city of Hamburg were handed suspended sentences for gang-raping a 14-year-old girl and leaving her for dead in sub-zero temperatures.

    The judge said that although “the penalties may seem mild to the public,” the teens had all made confessions, appeared remorseful and longer posed a danger to society.

    happyfeet (28a91b)

  84. wow that german chick sure got the short end of the terrorist refugee stick huh

    happyfeet (28a91b)

  85. papertiger (c8116c) — 1/29/2017 @ 11:55 am

    My criteria for the “full Monty” would be if you think rape is a capital offense, where the victim is subject to the penalty because there weren’t four women present as witnesses, then you are not welcome in my country. That’s one of my criteria.

    That’s not he full Monty – that’s an an extra requirement.

    I see what you are talking about is those courts that have declared that the women may have confessed to adultery, or had ir oroven by pregnancy, but doesn’t have the defense of rape unless it can proven. I kind of suspect those are rather novel rulings in some countries by people who are trying to make sharia law as bad as possible in order to smoke out the opposition. Because it probably wasn’t like that in the past.

    This requirement to come out against that probably can be used with regard to a visa, like a visitor’s visa where the administraton has discretion, but not where there may not be such discretion.

    I’d prefer swearing opposition to the murder of Jewish settlers in the West Bank. The rape thing is entirely theoretical.

    Sammy Finkelman (dec35d)

  86. ahhh

    rape theory

    interesting subject

    happyfeet (28a91b)

  87. 86. That has to do with leniency toward criminal offenses whichis a big problem in liberal democracies.

    Sammy Finkelman (dec35d)

  88. Here is a piece about the sanctity of the “green card” to keep in mind. This was actually reported by ABC in November.

    Thousands of green cards have been mishandled over the past three years, according to a new Department of Homeland Security inspector general report.

    Electronic system errors have caused at least 19,000 cards to be issued as duplicates or with incorrect information — such as name, date of birth, photo and gender — the report says. In some cases, green card applicants who should have received a card good for two years were issued one valid for 10 years.

    During the past year, USCIS inadvertently sent more than 6,000 duplicate green cards to applicants.

    “It appears that thousands of green cards have simply gone missing. In the wrong hands, green cards may enable terrorists, criminals and undocumented aliens to remain in the United States,” said DHS Inspector General John Roth.
    In September, Roth found that because of issues with USCIS digital fingerprint records, the U.S. government mistakenly granted citizenship to at least 858 immigrants who had pending deportation orders.

    New information on the scope and volume of issues prompted the publication of today’s report.

    The majority of the card issuance errors were due to “flawed design and functionality problems” with the agency’s electronic immigration system, which was implemented in 2013, according to the report.

    It also found that the percentage of green cards issued in error has steadily increased each year since the system was put into use.
    The watchdog said that USCIS “lacked consistency and a sense of urgency” in its efforts to recover the inappropriately issued cards, despite previous findings.

    “We must take concrete steps to remove any security gaps that can be exploited by terrorists and criminals. U.S. Citizenship and Immigration Services can assist such efforts by strengthening quality controls and its procedures to target lost, stolen or erroneously issued green cards,” said Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., in response to the report.

    The immigration agency agreed with all the report’s recommendations — including fixing the electronic system and implementing internal controls to identify issues early in the process — and said the measures will be implemented by June 2017.

    http://abcnews.go.com/US/thousands-green-cards-simply-missing-ig/story?id=43701333

    elissa (ae868b)

  89. “Nothing, I guess. Only, how are the weaponry and supplies for this entire army suppposed to get here? In the overhead bins?”

    I guess we should all be thankful Bubba failed in his attempt to hand over control of the Long Beach Naval Station to the Chinese.

    Harkin (0e2db9)

  90. President Trump tweets a sweet, swift, b-tch-slap to the Graham cracker and Johnny McBee.

    “Anddddd loving it!” – Maxwell Smart [Don Adams] ‘Get Smart’ NBC TV, 1966

    DCSCA (797bc0)

  91. happyfeet @87. They were Serbs, not Muslims. They are, therefore, Eastern Orthodox Christians. Did somebody not notice?

    Sammy Finkelman (dec35d)

  92. Priebus’ alternative facts ignore the large numbers of people, including Army translators, green card holders, and people holding dual citizenship, who were denied the ability to board planes in the first place, despite having valid visas or permanent residency.

    Priebus himself went from saying that the order didn’t apply to green card holders to saying “of course” it applied, in a matter of minutes. Now he is back to saying it doesn’t apply.

    Clearly they are just making stuff up as they go, phony numbers and all.

    Dave (711345)

  93. https://en.wikipedia.org/wiki/Long_Beach_Naval_Shipyard

    In 1997, COSCO (The China Ocean Shipping Company) wanted to lease the space from the City, including building a $400 million cargo terminal. It was opposed by Rush Limbaugh and the Audubon Society, to name a few, and was being reviewed for national security by The Pentagon.[12]

    After review by the DoD and CIA, the lease went through, at an agreed-upon payment of $14.5 million per year from the Chinese, with renewal scheduled after ten years.[14] However, continued controversy and opposition by Republican lawmakers caused cancellation of the lease, and the new cargo terminal, which was in fact built by the Long Beach Harbor Department (Port of Long Beach), was leased to Hanjin Shipping, a South Korean firm.

    Hanjin was the majority partner in Total Terminals International (TTI), which was the primary tenant at Pier T[15] until the financial collapse of Hanjin in August 2016. Hanjin entered talks to sell its stake in the Long Beach Terminal to its minority partner in TTI, Mediterranean Shipping Company in October 2016.[16]

    Sammy Finkelman (dec35d)

  94. @Kevin M, papertiger:mandatory auto insurance has nothing to do with illegal aliens

    It isn’t mandatory the way having health insurance is.

    First, as Kevin M points out, if you don’t drive you don’t have to buy it. There is no such exemption for the health insurance mandate.

    Further, you don’t have to buy it if you’re rich enough. There’s more than one way, self-insurance, posting bonds, etc. I don’t think the health insurance mandate allows that.

    Lastly, you can drive all you want on your own property. You don’t need a driver’s license for that, or insurance. There’s no such exemption for health insurance, for example if you treat all your illnesses at home with home remedies or some such.

    Gabriel Hanna (e10de5)

  95. @Dave:people holding dual citizenship,

    When you say “dual citizenship”, if one of those citizenships is American, those people are unaffected by the executive order.

    “Dual citizenship” in the EO context would be, for example, dual citizenship of Syria and France coming in on the French passport.

    Gabriel Hanna (e10de5)

  96. Mr. F what the countries have in common

    the ones Mr. Trump is wary of

    is they are currently or recently war torn

    happyfeet (28a91b)

  97. @Sammy Finkelman:They are, therefore, Eastern Orthodox Christians.

    Right, because every single person in a country follows the national religion? That’s kind of silly, Sammy.

    I didn’t see any evidence that these were Muslims from Serbia but you can’t reasonably declare them to be non-Muslim simply because they are Serbian.

    Serbia is 3% Muslim, 10% Catholic, 1% Protestant, 85% Orthodox.

    Gabriel Hanna (e10de5)

  98. the Department of Homeland Security is comprised of a bunch of fat-ass union halfwits what are allergic to competence

    I think Meghan’s coward daddy is head of the committee what oversees it?

    there you go

    happyfeet (28a91b)

  99. And the fact the immigrated to Germany strongly suggests they are NOT Eastern Orthodox. Muslims are a persecuted minority in Serbia, and the group most likely to leave if able.

    Shipwreckedcrew (af0b8c)

  100. You take one as being RIGHT and others who have no particular bias in the case (something you cannot say) take the opposite view.

    To be honest, I don’t believe I have any bias in this whatsoever. If I have any bias it’s in favor of following the law and Constitution, but if someone can convince me that this EO is legal I’m fine with it. Did you miss the part where I said I like the policy in general? What is my bias, Kevin?

    I’m not really interested in accusations of bias, but since you made one towards me, I’ll note that you seem to have a very different attitude towards executive power under Trump than you had under Obama. Who’s really biased here?

    Patterico (a4a3d0)

  101. Is this really just some “Pat doesn’t like Trump and so he criticizes everything he does” argument? If so, I will be leaving this thread for the Jury thread exclusively on this post. SWC can follow if he likes.

    Patterico (a4a3d0)

  102. You know what, Kevin, don’t even bother to answer that. I don’t care.

    I’ll be in the comments at the Jury if anyone has further points to make that don’t relate to my alleged personal bias of whatever sort.

    Patterico (a4a3d0)

  103. What is my bias, Kevin?

    A visceral dislike of Trump.

    Kevin M (25bbee)

  104. It’s a joy watching fools trying to win friends and influence people protesting at airports for teevee cameras.

    It only serves to add an additional delay and another bad memory, threading through noisy crowds, for weary passengers trying to just get to their destinations in what has become a miserable experience for millions around the world to travel by air — thanks largely to the terrorist acts of a comparative few.

    “Joey, have you ever been in a… Turkish prison?” – Captain Oveur [Peter Graves] ‘Airplane’ 1980

    DCSCA (797bc0)

  105. For the foreseeable future, if I comment at all on a post with the word Trump in the post, it will be at the Jury.

    Official announcement tomorrow.

    This is both a campaign to remind people to go to the Jury, and a reflection of my frustration that I will eventually be accused of bias in any main-blog comment thread that relates to Trump in any way. Until that stops making me angry, I’ll be commenting somewhere where such personal attacks are off limits. I do not blog or comment to make myself angry.

    Patterico (a4a3d0)

  106. Patterico —

    I’m really truly sorry that you cannot see your consistent tilt towards finding fault with Trump. Even when you agree with the general policy, there’s a fly in the ointment and you focus on the fly.

    It’s pretty clear to a lot of people. I really suggest that you reflect on it. But heck, it’s your blog, you’ve been running it for 15 years, and you must be doing something right. This just grates though.

    Kevin M (25bbee)

  107. pervy Mitt Romney’s slurpy egg mcmuffin has twittered hard – so very hard – against these new safety rules

    but Mr. Ted Cruz has kept his own counsel

    happyfeet (28a91b)

  108. oh goodie a manifesto

    happyfeet (28a91b)

  109. And it isn’t really about bias so much as given a choice of fairly equally-weighted readings of conflicting statutes, you seem adamant that one is right, the other wrong and deny that any honest court could conceivably decide otherwise (even comparing the discussion to Burwell and Halbig, which were far clearer and wrongly decided).

    When you do that you imply that those arguing against you are not only wrong, but somehow dishonest.

    Kevin M (25bbee)

  110. you seem adamant that one is right, the other wrong and deny that any honest court could conceivably decide otherwise

    You suck at reading. Please review the NUMEROUS statements comments I have made on this saying I am not an expert in this area and could be wrong but am just more convinced by one set of arguments until I see a better one.

    Then apologize to me.

    Or don’t. Whatevs. I am out of here. People who are going to mischaracterize what I say this badly are not worth my time.

    Patterico (a4a3d0)

  111. i use “goodie” instead of “goody” cause of goody always makes me think of Hawthorne

    no immigrant, he

    a native son of Massachusetts

    he could tell you at a glance how many gables your house had

    we shall not see his like again

    happyfeet (28a91b)

  112. wtf is a gable anyways

    happyfeet (28a91b)

  113. It could be that Bier is ultimately wrong and that Trump’s order is legal. But not, I think, for the weak reasons offered by Andrew McCarthy.

    — One example among many of a thing I actually said that showed a lack of total certainty on this, given my lack of expertise in this area.

    you seem adamant that one is right, the other wrong

    — Alternative Facts

    Bye now!

    Patterico (a4a3d0)

  114. K, think you’re being a little hard on P.

    His opinion on T is known and I’m no lawyer but it seems to me a good attorney can present a reasonable position in a legal argument in which he personally disagrees. Just sayin’…

    DCSCA (797bc0)

  115. Pat, near as I can tell you are in a small tiff with a single commenter on this thread while there are dozens of others of us who have been carrying on a conversation and reading your real comments (by that I mean substantive ones that are not arguing about bias and directed to that commenter). If you think stalking off to The Jury because of that commenter’s words is the right thing for you personally, and for the blog by all means do so. But please also consider that I (and I think I am not alone) feel that being asked to follow two simultaneous discussions going on on a single topic both here and at the Jury is not viable and is probably not going to happen much.

    elissa (d1b4cb)

  116. This is not based on an isolated incident. The very phrase “stalking off” — to describe my desire to discuss matters in a forum where I will not be subjected to personal attacks on a blog I run and pay for — is symptomatic of the general and widespread atmosphere I am not currently interested in subjecting myself to.

    Patterico (a4a3d0)

  117. My final comment for the day here is that the atmosphere here is also “clear to a lot of people” who share my reluctance to comment here on any topic involving Trump. People might want to reflect on that too, if reflection were their thing.

    Patterico (a4a3d0)

  118. I still don’t understand who Trump’s EO “discriminates” on the basis of national origin.

    If you’re a Syrian man working for one of Trump’s company in Saudi Arabia, (I’m assuming that) you can still enter the country, despite the fact that you were born in Syria.

    If Bier is right, then when can a president specifically ban refugees or immigration from a specific region? If Trump stopped refugees from North Korea is that theoretically discriminating against that people due the national origin?

    lee (55777a)

  119. SF: They are, therefore, Eastern Orthodox Christians.

    Gabriel Hanna (e10de5) — 1/29/2017 @ 2:04 pm
    Right, because every single person in a country follows the national religion? That’s kind of silly, Sammy.

    In the case of serbia, taht’s really correct. If they were not Eastern Orthodox Christians, or came from a family taht was, they would not be called Serbs. If they were Catholics, they would be called Croats, and if there were Moslem, they’d be alled Moslems, or Yugoslavian, or possibly Bosnian. It doesn’t matter what the statistis say, which may be out of date too.

    The stories didn’t say they were citizens of Serbia. They said they were Serbs.

    I didn’t see any evidence that these were Muslims from Serbia but you can’t reasonably declare them to be non-Muslim simply because they are Serbian.

    Yes, you can. It is virtually a contradiction in terms.

    That is the way it is in he former Yugoslavia. The civil war(s) were fought along those lines, and that is how Serbs, Croats and Moslems were defined.

    If they were said to be Bosnian, they could be anything.

    Sammy Finkelman (dec35d)

  120. 102. Shipwreckedcrew (af0b8c) — 1/29/2017 @ 2:12 pm

    And the fact the immigrated to Germany strongly suggests they are NOT Eastern Orthodox. Muslims are a persecuted minority in Serbia, and the group most likely to leave if able.

    Then they shouldn’t be called Serbs.

    There were plenty of people from Yugoslavia who moved to Germany back when there was a Yugoslavia. It was one the prime places they got “guest workers” from. A bigger one was Turkey. So they could be people whose family’s presence dates from that time. And they might have also come from what became Croatia.

    https://en.wikipedia.org/wiki/Serbs_in_Germany

    Most Serbs living in Germany, moved during the 1960s and 1970s as Gastarbeiter or “Guest workers” when Serbia was part of Yugoslavia. A small percentage of Serbs migrated to Germany as refugees during the Yugoslav Wars of the 1990s.

    So, you’re right – and you’re wrong.

    You’re right they probably didn’t come as refugees. You’re wrong, that there is no other way Serbs could have gotten there.

    https://en.wikipedia.org/wiki/Serbian_diaspora

    . There are over 2 million Serbs in diaspora throughout the world, although some sources put that figure as high as 4 million.[1] Large communities are found in German-speaking countries (Germany, Austria and Switzerland) amounting in total to more than 1.2 million.

    Germany 313,198 Serbian ancestry (2015)[2] 700,000 ethnic Serbs (incl. ancestry

    Sammy Finkelman (dec35d)

  121. 107. DCSCA (797bc0) — 1/29/2017 @ 2:50 pm

    It’s a joy watching fools trying to win friends and influence people protesting at airports for teevee cameras.

    That actually isn’t the best way.

    Tonight I heard on the TV news that Governor Cuomo said that there are 6 people left who are detained at Kennedy airport. The number is a little fluid, says WABC, because people can still be added. This afternoon there were 12. Senator Schumer made a speech at some kind of protest – his voice sounded like it was breaking. He also said Senator McCain was on the same side of the issue, and maybe legislation might be passed. Schumer had earlier had a demonstration by some real extremists in front of his home complaining that he wasn’t voting down the line against every one of President Trump’s nominees. Those people I think are mostly protested out. They protested when they didn’t have anything to protest.

    Senator Schumer used some phrases but the right words would be that this was callous, playing with people’s lives and deliberate stupidity.

    Among the people caught up in it, or nearly caught up in this, mentioned on TV shows were a graduate linguistic student at Stony Brook University who had come to visit her family in Iran – she got released under the court order. An NBA basketball player from Sudan who was worried that if they went to play in Canada he wouldn’t be allowed back. The NBA as an organization was concerned. That seems OK now that green card holders are clearly not included. An Olympic athlete born in Somalia who trains in the United States was assured by the U.S. Olympic committee that he could continue to do so. Probably a special visa. The USOC was worried that its bid to host the 2024 Olympics could be in jeopardy (if this become permanent I suppose.)

    The rollout was erratic but people in Homeland Security etc. said they didn’t want to tip off their hand because they didn’t want bad guys to change ther plans. What bad guys? If there were any who wanted to come now, they would have made sure to come to the United States before January 20. Did they catch any and send them to Guantanamo?

    A doctor’s wife who lives in n the D.C. area, who visited her mother who has breast cancer in Iran was sent back. There may have been a 5-year old in detention who waslater re-united with her mother. A family from Iraq where the father had sold his house, and he and his wife quit their jobs, and their kids are out of school who were stuck in Cairo, went back to Iraq. The Iraqi government made a mild statement referring to their close relationship with the United States. Iraq is the only one of the seven countries that is a good prospect fro getting out of the estrictions.

    Some Republicans, by the way, pointed out that President Obama had imposed a sic month suspencion of (travel?) from Iraq in 2011.

    Among the people Trump spoke to today were the King of Saudi Arabia and Angela Merkel. Angela Merkel said they spoke about the Geneva convention about refugees.

    Trump is tweeting.

    He said Senators John McCain & Lindsey Graham are wrong and that “they are sadly weak on immigration,” and they should “focus their energies on ISIS, illegal immigration and border security instead of always looking to start World War III.” (meaning I guess their desire for military interventions – or is hostility toward Russia?)

    And he also posted a statement on Facebook.

    Sammy Finkelman (dec35d)

  122. Sammy is right. I know Christian Serbs who were displaced from now-Muslim Bosnia and came to the United States as refugees. They were on a Muslim komitaj death list. There are others who were displaced from Kosovo, Skopje and Croatia. In the hundreds of thousands, like Sammy says.

    nk (dbc370)

  123. You ask why libertarians aren’t trusted, why republican poobahs are barely regarded, because of the carp that bier’s pulled, he could have said i disagree with this strategy, but its in keeping with recent decision, it is a continuation of a failed policy, imho, but he didn’t do that. Like the crowdstrike report, and the dodgy dossier he threw something up on the wall, and saw if it stuck

    narciso (d1f714)

  124. There are streets in Kosovo named Clinton. If their religion did not forbid it, they would put up statues of him with his pants down and Monica on her knees in front of him. To anybody who thinks that pregnancy cannot occur that way … that’s how a new Muslim nation in Europe was conceived.

    nk (dbc370)

  125. Yes, but who had the last laugh, who were the footsoldiers and quartermasters for the balkan war, what did the Serbs do to us?

    narciso (d1f714)

  126. It’s also the reason that Clinton is a dirty word in Russia as well as in Serbia. It was a complete humiliation for the nascent post-Soviet Russia under Yeltsin.

    nk (dbc370)

  127. Ok, I’ll bite. What did the Serbs do to us?

    nk (dbc370)

  128. @109 happyfeet

    Mr Ted Cruz forsook his Canadian citizenship so it looks like he’s all in with “‘murica”

    Pinandpuller (16b0b5)

  129. Has Trump forsaken his British citizenship, which coming from his mother is more inalienable than Cruz’s?

    nk (dbc370)

  130. @Sammy: Then they shouldn’t be called Serbs.

    You are trying to make too much of stew out of one oyster.

    People use the word “Serb” to refer to more than one thing. A person coming from Serbia could be a called a Serb, and as I showed above not all people in Serbia are Orthodox or even Christian, since there are Muslims and Catholics in Serbia.

    An ethnic Serb, yeah, would be defined as Orthodox, like 100 years ago. But you are saying that a non-Orthodox Serb is a contradiction in terms and then trying to use that definition to define the rapist Serbs in the example as non-Muslim.

    But it doesn’t work. They are, or are not, Muslims. They did, or did not, come from Serbia. It does not matter what label was applied to them, it cannot change the reality of those two elements of their identity.

    Maybe they weren’t Muslims, or maybe they were and the term “Serb” is misapplied. But you can’t define their religion and origin away by using a restrictive definition of Serb. For all you know they were atheists or Buddhists.

    Gabriel Hanna (e10de5)

  131. @nk:Has Trump forsaken his British citizenship, which coming from his mother is more inalienable than Cruz’s?

    Judging from what the UK says here about British citizenship and nationality, it does not appear that Trump would have inherited any.

    However, a child may be a British subject if they were born on or after 1 January 1983 in the UK or a British overseas territory and all the following apply when they are born:
    one of their parents is a British subject
    neither parent is a British citizen, British overseas territories citizen or British overseas citizen
    they would be stateless without British subject status

    Don’t see how this applies to Trump. He was born in New York City, which is not a British overseas territory.

    Gabriel Hanna (e10de5)

  132. So any curiosity who organized these protests, at least in one city, Columbus Ohio, the Palestinian solidarity campaign, at the forefront of the bds effort against Israel, always keep your eye on the ball.

    narciso (d1f714)

  133. And how many ‘detained’ this weekend so far have ended up being deported?

    “Name the count and the amount!” – ‘Dialing for Dollars.’

    DCSCA (797bc0)

  134. @nk: Trump’s mother became a US citizen before Trump was born, and he was born in New York City. Can’t see that gets him any kind of British nationality at all.

    Gabriel Hanna (e10de5)

  135. Just like cair and splc, who haven’t any conscience, otgabized the fraud trek squirrel. Just the levick and cage sprung up ‘spontaneously’ against gitmo

    narciso (d1f714)

  136. but what would low wattage hollywood trash like scarlett johansson (sp?) and ashley judd want us to do with the immigrations

    this is the question none of you are asking

    happyfeet (28a91b)

  137. @138. Hollywood summed up in a nutshell by a starlet:

    “The protests at LAX are important but so are the SAG Awards, otherwise I’d be there!”

    All that glitters is not bold.

    “Oh, we’re going to talk about me again, are we? Goody!” – Tracy Lord [Katharine Hepburn] ‘The Philadelphia Story’, 1940

    DCSCA (797bc0)

  138. Remember how in the’departed’ costigan is told ‘who he can’t hit’ similarly tillerson nudged trump to leave some pieces off the table for now

    narciso (d1f714)

  139. Trump was born after 1983? https://www.gov.uk/types-of-british-nationality/british-subject

    Never mind. It was just banter, anyway. This thread got too serious.

    My opinion is that these cases (there are four in four different states) will be decided on Hamdi grounds — standing and federal court subject matter jurisdiction for lawsuits against the U.S. by aliens not in the United States. Because shipwreckedcrew is right. A point of entry between the airplane and passport control is not “in the United States” any more than Gitmo is.

    nk (dbc370)

  140. Hamdi was a us citizen born of parents from the kingdom in Louisiana, I don’t see how that would apply

    narciso (d1f714)

  141. Companion case. Rasul v. Bush. I said Hamdi because two things happen when you get older. You start losing your memory and … at the moment I cannot remember what the other one is.

    nk (dbc370)

  142. are we finding out that all along the libertarians were just wanton buttcheek spreaders

    this is so obscene

    happyfeet (28a91b)

  143. Time machine, Nk, trumps uncle knew tesla, come on you haD to suspect something along those lines.

    Anyways Tim Blair aussie blogger extraordinaire turned up an interesting detail about the tipton 3, they were lying through their teeth quelled surprise

    narciso (d1f714)

  144. Not all happy just this guy and the one who thinks you can make deals with the Castro bros in a country where there ate no property or legal rights

    Remember when they say Portland is like another country.

    narciso (d1f714)

  145. I like how we now have a President who doesn’t bow to the King of Saudi Arabia.

    Cruz Supporter (102c9a)

  146. I can’t believe this argument. Reflexively arguing against anything and everything Trump does without thinking about it any more deeply than “I hate Trump.”

    Trump is saying “I want to protect US citizens from terrorist, and hence will be putting on a temporary freeze until we get stronger protections set up.”

    The Dems & nevertrumpers respond with “No!! Trump can’t be allowed to do that.”

    Trump says, “my highest priority is to ensure the safety and security of the American people.”

    Nevertrumpers say, “F*ck you!!”

    Who is going to win that debate? Is there a large constituency in America against the “safety and security of the American people”?

    fred-2 (ce04f3)

  147. oh. well good then

    we have to use common sense you know

    happyfeet (28a91b)

  148. We may be missing the 11 million Mexican tree forest for the 109 Muslim trees.

    Can La Migra just pick up an undocumented alien and put him on a bus to Mexico?
    At The Wall?
    Inside the “border zone” which can be fifty miles past the entry point and more?
    Downtown Chicago?

    nk (dbc370)

  149. @nk:Trump was born after 1983

    No, who said he was? There’s a lot of information at that link. There’s a tool to determine if you qualify for British citizenship and if you put in Trump’s answers you get “no”.

    Never mind. It was just banter, anyway.

    Well okay then.

    Gabriel Hanna (e10de5)

  150. Repeating ‘peaceful protesters’ attacking trump supporters in seattle

    narciso (d1f714)

  151. I’m old enough to remember how way back on January 11, Barack announced the end to the “wet foot, dry foot” policy.
    None of the progressives who are currently freaking out bothered to freak out about that.

    Coincidence? Or partisanship?
    You decide! (LOL)

    Cruz Supporter (102c9a)

  152. They don’t see anything wrong with the rationing, the medieval medical condition, they blame that on the embargo.real torture, they trained the north Vietnamese, they yell at gitmo but ignore mazorra (state psychiatric facility) la cabana, rancho boyero, I could cite the full bamboo archipelago

    narciso (d1f714)

  153. What we have here is magical thinking, or postmodernist as victor Hanson calls it, this is o’douls, what happens when there is a real response nit this pro forms ratifying of a law.

    narciso (d1f714)

  154. Trump is saying “I want to protect US citizens from terrorist, and hence will be putting on a temporary freeze until we get stronger protections set up.”

    84 out of 89 innocent people killed by terrorists over the last eight years died in attacks perpetrated by American citizens.

    Zero died in attacks by people from the countries in Trump’s ban.

    This is purely a publicity stunt to gratify his white nationalist cheerleaders by terrorizing thousands of innocent, law-abiding people who have done nothing to give any reasonable cause for suspicion.

    Dave (711345)

  155. Shirley he can’t be serial.

    narciso (b9fcb3)

  156. #158 narciso, he’s cereal alright — grape nuts.

    Cruz Supporter (102c9a)

  157. 49 came from the Orlando shooter, 14 from San Bernardino, the one at Ohio state, the one in New York (not for lack of trying, the path train plot in 09

    narciso (b9fcb3)

  158. Patterico — I can see a general argument that the PotUS does not have the authority to indefinitely or permanently ban such entry, it seems necessary for them to have the capacity to do for a limited time — akin to the War Powers Act — so that Congress can look at the PotUS’s arguments and see if they are reasonable.

    An obvious example to me would be if there was a release of a virulent pathogen in another nation.

    The PotUS needs to be able to act promptly to block the spread of the pathogen into the USA. If needed, Congress can then address the issue for longer-term consideration.

    This seems to be a reasonable concept as far as any of the PotUS’s powers. If there is sufficient reason for immediate action, and I think there is, given Obama’s extreme laxity on this — then the PotUS should have the power to act and then justify afterwards.

    It is not as though this is an irreversible action. Someone can come here in 90 days after better vetting processes are put into place.

    IGotBupkis, "Si tacuisses, philosophus mansisses." (225d0d)

  159. Dave, your comment is dishonest because Trump did not choose those countries. The Congress and Obama’s DHS did, and they represent countries that do not have functional central governments’ capable of cooperating with DHS to vet immigrants.

    SPQR (a3a747)

  160. Dave (711345) — 1/29/2017 @ 8:25 pm

    Zero died in attacks by people from the countries in Trump’s ban.

    One of the 9/11 hijackers would have been from Yemen, but he was repeatedly turned down for a visa because people from Yemen had a record of overstaying visas, which is all they were concerned about. The U.S. wanted pilots to be trained in the United States probably for safety reasons.

    https://en.wikipedia.org/wiki/Ramzi_bin_al-Shibh

    Unable to take part in it himself, Jump to: navigation, he became a co-ordinator of the plot, serving as a link between Khalid Sheikh Mohammed and Mohamed Atta, the leader of the hijackers in the United States, who was from Egypt. (Mohamed Atta taught the other hijacker pilots that the radio to the outside world was the intercom to the cabin.)

    Ramzi bin al-Shibh was captured in Pakistan on September 11, 2002, transferred to a secret prison in Morocco and/or other places for interrogation and transferred to Guantanamo Bay on, or shortly before, September 6, 2006, where he remains today, with his trial interminably delayed in proceedings reminiscent of Bleak House.

    Several years ago, I mean in 2011, his lawyers tried to say he was mentally unfit to stand trial, and he denounced his lawyers, and he has refused to co-operate with a mental examination.

    As of Jan. 30, 2017, he has been held at Guantánamo for 10 years four months.

    But you’re right. The major countries are different countries tahn the ones selected here. Those are either countroids of low emigration to the United States or terrorist are not citizzens of those countries.

    The Ohio State shooter was a Somali, but he had spent 7 years in Pakistan, and tgaht’s where he was recruited. He was also probably older than he said.

    Sammy Finkelman (3fda43)

  161. SPQR (a3a747) — 1/29/2017 @ 10:06 pm

    they represent countries that do not have functional central governments’ capable of cooperating with DHS to vet immigrants.

    And that kind of vetting is both useless and unnecessary.

    The same FBI that half claimed that this kind of vetting (asking the government of the country they are a citizen of if they know this person is a terrorist) was necessary, also claimed that somebody probably hacked Hillary Clinton’s server because it lacked the bells and whistles that other servers have (which don’t keep out hackers by the way) which is also nonsense. There was probably no more secure server on the history of e-mail than Hillary’s Clinton server, because there was no way to get or guess the password, which is the way just about all hacking works. Nor it is plausible that they could take over the computer somehow.

    Sammy Finkelman (3fda43)

  162. nk (dbc370) — 1/29/2017 @ 6:28 pm

    Can La Migra just pick up an undocumented alien and put him on a bus to Mexico?

    Only if Mexico agrees he is a Mexican, and they can make trouble.For instance, they couls demand that the person being deported prove it.

    Of course Mexico could have more problems if they tried that, but that’s where things could go if it gets down to a test of wills.

    Sammy Finkelman (3fda43)

  163. @Dave:perpetrated by American citizens.

    You wouldn’t be leaving out any relevant contextual information about those 84 people killed by terrorist American citizens, would you? That these terrorist American citizens were naturalized Muslim foreigners, or that their parents were foreigners?

    If foreign Muslims aren’t here to begin with, they can’t participate in terrorist attacks here. Nor can their American-born children radicalize and participate in terrorist attacks.

    Very simple. You’re helping Trump by trying to palm those cards. Americans have had enough of that. This is how we got stuck with Trump, Vox-style attempts to define the problem away.

    Gabriel Hanna (e10de5)

  164. @Gabriel

    I’m not leaving out anything.

    We are assured by Trump himself (who would *never* lie) that there is no ban on Muslims, and no intention of one, and this ban is surgically targeted at certain specific countries only.

    Except that people from those countries haven’t done squat in the way of domestic terrorism.

    The only terrorist attack attributable to a foreigners that killed anybody in the last eight years was the Boston Marathon scumbags, and they were from Russia. So why doesn’t he ban travel from Russia?

    You are arguing in favor of a blanket ban on Muslim immigration, for how else can we be sure that somebody’s unborn children, or grand-children, or great-grand-children, etc, don’t commit some awful crime? According to Trump, that’s not on the table or under consideration, so why bring it up in the context of his executive order?

    Unless, of course, Trump is lying and the EO is just the first step of an illegal program to target innocent Muslims indiscriminately, regardless of whether they’ve given any cause for suspicion. Which it appears you would support.

    Dave (711345)

  165. Pat just Hufpoed himself out of posts having to do with the word Trump.

    That’s going to be tough to pull off for four years. That’s Trump years – worth sixteen in normal president years.

    papertiger (c8116c)

  166. “Dave, your comment is dishonest because Trump did not choose those countries. The Congress and Obama’s DHS did, and they represent countries that do not have functional central governments’ capable of cooperating with DHS to vet immigrants.”

    So you’re saying Trump decided to use a list of countries with no historical record of responsibility for terror attacks inside the US, instead of having his people draft one (including, say, Russia and Saudi Arabia) of countries that did?

    That is supposed to make the EO good policy how, exactly?

    And the fact still remains – nearly every innocent death to terrorism in the last eight years is attributable to an American citizen.

    It makes sense if you understand that the EO is not an attempt to address any real problem but rather a sop to his white nationalist cheerleaders, who are about as likely to run into an Islamic militant as they are to get their $40/hour manufacturing jobs back.

    Dave (711345)

  167. @papertiger

    Yeah, I have infinite respect for our host (and I agree with him 110% of the time), but it seems unfortunate to me.

    Still, he explains it clearly – paying the freight gives him the privilege to do whatever makes the experience enjoyable for him.

    Dave (711345)

  168. Somali Pirates. Sudan on the cusp of a Rwanda style genocide. Yemeni rape camps. No need to mention Syrian, Iraqi, or Iranian troubles. Libya.

    I agree with Obama’s DHS on that list 110%. No need to import those problems.

    papertiger (c8116c)

  169. @Dave

    The administration is claiming that the regions affected by the ban have a history of training and exporting terrorists and were drawn from nations selected in Terrorist travel Prevention Act of 2015.

    lee (55777a)

  170. “And the fact still remains – nearly every innocent death to terrorism in the last eight years is attributable to an American citizen.”

    Are you saying these ME moslems should not be allowed to become citizens? I concur. Throw them out.

    https://2.bp.blogspot.com/-U5-9IhaG2oM/WI85mFavPbI/AAAAAAADGM4/BChuyI2mwgswhv3I1D09_tw5Cq_CjEMGgCLcB/s400/theo3.jpg

    Rev. Hoagie® (785e38)

  171. Then there’s the lackawanna 6 whose leader was killed in a drone strike, in Yemen, which sy hersh made much about at the time

    narciso (d1f714)

  172. @Dave:You are arguing in favor of a blanket ban on Muslim immigration

    I most certainly am not. I am criticizing your position, but that does not mean I am actively espousing the position you attribute to me.

    illegal program to target innocent Muslims indiscriminately, regardless of whether they’ve given any cause for suspicion.

    First “illegal” has not been determined. Second, “target..indiscriminately” is wrong because our borders are our own and no one, Muslim, Martian or whatever, has a right to enter our nation or any other, and hence no one is being deprived or punished with anything.

    There is no nation in the world that considers its borders open to everyone as a matter of right, and no government or judicial system in the world considers being refused entry as a punishment.

    You have no more the right of entry into a private citizen’s house, and can no more consider being refused that entry as a punishment, than you can refusal of entry to a nation. You choose to conflate it with “punishment” because you cannot make the case with an honest characterization of the situation.

    nearly every innocent death to terrorism in the last eight years is attributable to an American citizen.

    Further dishonest characterization of the real problem. Enjoy Trump’s reelection in 2020, because arguments like this are going to ensure that.

    Gabriel Hanna (e10de5)

  173. @Gabriel

    So a blanket ban on, say, Jewish or Black immigration would present no constitutional difficulties (according to you)? Because after all, being refused entry is not a punishment.

    Such a ban, like a Muslim ban, would violate the equal protection rights of US Citizens in the same groups, whose family members would be unable to visit them from abroad, and who would effectively be declared second-class citizens.

    I am obviously not arguing that people we legitimately suspect based on evidence should be admitted.

    I am saying that discriminating against members of ethnic or religious groups based on NO evidence is not only counterproductive but illegal.

    Further, it is Congress who should write immigration law, not the president. I have held that position for the last eight years, and I have no plans to change it now.

    Dave (711345)

  174. nearly every innocent death to terrorism in the last eight years is attributable to an American citizen.

    More accurately, moslem American citizens. How about this: nearly all of the 28,328 murdered in terror attacks worldwide in 2016 were murdered by ME moslems. So Dave figures it’s a good idea to bring’em here?

    It makes sense if you understand that the EO is not an attempt to address any real problem but rather a sop to his white nationalist cheerleaders, who are about as likely to run into an Islamic militant as they are to get their $40/hour manufacturing jobs back.

    So would that snarky remark befit the families of the people murdered at Pulse? Or are you one of those leftists who believe if you’re white and voted Trump you MUST be a racist “white nationalist cheerleader”? BTW, Dave a nationalist is a person who puts his country first before others. What country do you put first?

    On the side, how much longer before the wiki and google and whatever changes the meaning of the word nationalist to put a negative spin on a patriotic word to curry the left? Another case of the Mandela effect.

    Rev. Hoagie® (785e38)

  175. I think this ban, is a maginot line, because it doesn’t affect folks like the man in ‘the man in hat’ at Brussels airport or miss boumedienne, or USSR khadir, the Quebec shooter

    narciso (d1f714)

  176. Again, you must employ Straight Outta Compton policing tactics for the kids.

    urbanleftbehind (5eecdb)

  177. Victoria coates Cruz aide tapped for nsc (free beacon)

    narciso (d1f714)

  178. Dave, this is a temporary ban on people from certain countries — it’s not a ban on people of a certain religion.

    So you can put your tired MSM charge of “raaaaacisssm” back into the bottle.

    Cruz Supporter (102c9a)

  179. Past performance is not a guarantee of future safety.

    It would be interesting if you were aware of the number of terror events that have been planned in the US but not successfully carried out. Just because immigrants from those 7 countries have not managed to actually carry out a plan doesn’t mean they haven’t actively made efforts to do so, only to have their efforts thwarted.

    I know that has happened … but the details aren’t public and won’t be made public.

    shipwreckedcrew (56b591)

  180. Dave is listening to his fillings, you did a great job clarifying precedents going forward, swc

    narciso (d1f714)

  181. American-born imam Anwar al-Awlaki was killed by a drone strike in Yemen.
    I wonder why he took sanctuary in Yemen, as opposed, to say, Peoria.

    Cruz Supporter (102c9a)

  182. Where were they last year, when Obama signed the law

    narciso (d1f714)

  183. 186. Cruz Supporter (102c9a) — 1/30/2017 @ 8:24 am

    American-born imam Anwar al-Awlaki was killed by a drone strike in Yemen.

    I wonder why he took sanctuary in Yemen, as opposed, to say, Peoria.

    He had discovered that the FBI had discovered that he was seeing prostitutes, and he was afraid they might reveal it. So he, in one or two stages, went over completely to the dark side, as they say. Although he was always there; otherwise that would not have pushed him all the way into the arms fo al Qaeda. He had probably been peripherally involved in the September 11th plot.

    Later, in Yemen, after trying and failing to become the head of al Qarda in the Arabian Peninsula, but still occupying a leadershop role, especially with regard to the vetting of terrorists, he was put on a death list, but thought he could escape the drones, because they had failed a few times before, and he didn’t want to spend life in a maximum security prison – and maybe also he thought there was no way of quitting and getting out of a war zone at least.

    Sammy Finkelman (8a673f)

  184. Sammeh he knew blotters both in San Diego and Virginia, bow yesterdays raid targeted his brother in law

    narciso (d1f714)

  185. Patterico, appreciate your analysis of the two arguments. I appreciate you think it is executive overreach, but given past precedent with the previous administrations decision to ‘not prioritize’ prosecution of illegal aliens, how would you react if instead of an EO ordering a 120 day pause to get vetting systems in place, if they put all visa applications into the ‘indefinite hold’ pile and took no action. Would that in your view be legal? I appreciate it is not the way our system ‘ought’ to work, but it is the way it does work. If the right plays by Marquis of Queensbury rules, while the left plays by Alinsky’s Rules, we’ll all end up in Gulag.

    noway (2640f4)

  186. you seem adamant that one is right, the other wrong and deny that any honest court could conceivably decide otherwise

    You suck at reading.

    How would YOU read #57?

    “Is that how you felt about Halbig and King v. Burwell? Do you now think “established by the state” means “established by the Secretary of Health and Human Services” because a dishonest court majority said so?”

    Kevin M (25bbee)

  187. 191. narciso (d1f714) — 1/30/2017 @ 9:08 am

    Sammeh he knew plotters both in San Diego and Virginia,

    That’s what it was. I think Saudi intelligence was also involved, and the sudden resignation, after almost a quarter of a century, of the head of Saudi intelligence, Prince Turki bin Faisal, 10 days before September 11, 2001, would be amazing if it was a coincidence.

    There’s been some very carefully written words about the role of the Saudi government or princes.

    btw yesterday’s raid targeted his brother in law

    So that’s an explanation of what taht was about..

    What you have to worry about here is the question of whether or not the information that led to this targeting is disinformation – that is, while Awlaki’s brother-in-law almost certainly was a member of AQAP, was he as high ranking as Obama was led to believe? Was this an important target?

    It would be a good tactic on the part of the true leader(s) to point the finger at someone else. This has happened time after time in Pakistan and Afghanistan. We killed the number 3 man in al Qaeda I don’t know maybe ten times.

    Also it might be ISIS that supplied the information (in which case it might be accurate, but done to help some other terrorists get a bigger organization.)

    The fact that one SEAL was killed, and a helicopter destroyed, makes it look like the raid was not carried off or prepared so well.

    Sammy Finkelman (8a673f)

  188. #189 Sammy, so al-Awlaki was so scared of people finding out that he had seen hookers, that he went to Yemen?
    OMG. (LOL)

    Cruz Supporter (102c9a)

  189. So, judging by the wording of 8 U.S.C. 1152(a)(1)(A), the President can’t discriminate against immigrants seeking to enter the United States from a foreign power with which the U.S. is at war. I don’t think that is what was intended. I realize we are not now in a declared war, but I think the President always retains the power to exclude classes of aliens for national security reasons. No Congress would do away with that right.

    JoeShmoe99 (f55637)

  190. 195 Cruz Supporter (102c9a) — 1/30/2017 @ 10:50 am

    .#189 Sammy, so al-Awlaki was so scared of people finding out that he had seen hookers, that he went to Yemen? OMG. (LOL)

    That’s what they say, or maybe his family said. I don’t know ifit is true.

    The idea would be that he would not be able to maintain his position as an imam.

    This is the story:

    http://nypost.com/2015/09/13/al-qaeda-terrorist-feared-his-love-of-sex-and-hookers-would-end-him/

    For a man in his position, his actions were stunningly reckless. As many a Christian minister had discovered the hard way, a public sex scandal could blow to bits a promising religious career.

    Awlaki was violating fundamental tenets of the conservative Islam he preached: repeatedly committing adultery; lying about his background, even as he revealed to a series of prostitutes his real name; squandering his family’s limited budget at a rate of $300 or $400 an hour. In one of his sermons, he had denounced zina, or fornication, blasting American television for spreading zina all over the world and declaring that Allah had sent AIDS as punishment.

    “The movies and the nudity and the destruction of this culture is now global,” he declared.

    To be exposed now before his congregation and his growing national and international audience as a hypocrite and flagrant sinner would be a devastating blow, almost certainly career-ending.

    ….A long-secret document reveals just how Awlaki learned on that night in March 2002 of his FBI file and what it contained. The bureau had not confronted him, nor had any of Awlaki’s friends or colleagues learned of the file’s existence and tipped him off about it.

    Instead, the tip came from inside Awlaki’s secret life in the hotels and motels around the nation’s capital: He had received a warning call from a manager of one of the escort services he regularly patronized who told him that “an agent named ‘Wade’ had been there asking questions about him.” The agent, Wade Ammerman, later told four interviewers from the 9/11 Commission that he believed the escort manager’s call — monitored by the bureau under a court order approving eavesdropping — made Awlaki “nervous” and prompted him to change his plans.

    Awlaki would have realized for the first time that his many visits to prostitutes had been monitored by the FBI. The nature of the questions that agents had asked the escort service manager likely would have made clear that they knew a great deal about his extraclerical activities.

    He was right: However thin the evidence tying him to militancy, the bureau’s Awlaki file was overflowing with lurid details of his paid sexual encounters.

    It was an intolerable threat that Awlaki did not dare confront and could not mitigate. He could only flee.

    He may have fled because he suspected they knew more about his terrorist supporting activities than they did.

    Now he was anyway a supporter of the terrorists, but limited his activities, like the legal above ground Communist Party did in rhe 1930s.

    Sammy Finkelman (8a673f)

  191. narciso @147 trumps uncle knew tesla

    Well, at least he knew him after he died.

    http://www.newyorker.com/news/amy-davidson/donald-trumps-nuclear-uncle

    He was at M.I.T. for decades, and the X-ray machines he helped design “provided additional years of life to cancer patients throughout the world,” as the Times put it in his obituary, in 1985. Trump was involved in radar research for the Allies in the Second World War, and in 1943 the F.B.I. had enough faith in his technical ability and his discretion to call him in when Nikola Tesla died in his room at the New Yorker Hotel, in Manhattan, raising the question of whether enemy agents might have had a chance to learn some of his secrets before the body was found. (One fear was that Tesla was working on a “death ray.”) As Margaret Cheney and Robert Uth recount in “Tesla, Master of Lightning,” Professor Trump examined Tesla’s papers and equipment, and, in a written report, told the F.B.I. not to worry: Tesla’s “thoughts and efforts during at least the past 15 years were primarily of a speculative, philosophical, and somewhat promotional character,” but “did not include new, sound, workable principles or methods for realizing such results.”

    Donald Trump said his uncle warned him that nuclear weapons were dangerous and getting worse.

    Sammy Finkelman (8a673f)

  192. Can a President impose what is in effect a de facto ban on immigration of a group of aliens based on their nationality or place of residence?

    I think this is what is coming at the end of the 90 day period of reviewing the current procedures in place, and substituting for them a regimen of “extreme vetting” that might in many respects make it practically impossible for applicants from certain countries to get approval consistent with the standards established.

    And 1152(a)(1)(B) clearly authorizes the Admin. to impose different standards with regard to applicants from different countries. There’s nothing illegal about saying that an applicant who is a citizen and resident of Poland has to clear a much lower bar in terms of vetting than an applicant who is a citizen and resident of Yemen.

    I’m going to post his hypothetical on the different threads that exist on this topic, and invite responses:

    In March 2017 there is an outbreak of a new and virulent strain of Ebola Zaire virus — 90% mortality rate, airborne transmission. 50,000 new cases are being diagnosed a week.

    Pursuant to 1182(f), President Trump orders that there be no entries for residents of the Democratic Republic of Congo for a period of 90 days, during which time public health officials are to determine whether meaningful controls can be put in place in the US to prevent an outbreak of an Ebola Zaire pandemic in the United States.

    After 90 days, the CDC and Sec. of HHS report to the Pres. that one necessary component of a comprehensive plan to protect the US public against the outbreak of a potential pandemic of Ebola Zaire is to require all applicants for immigrant visas from the Congo to provide verifiable public health records showing they were vaccinated against Ebola Zaire within the last six months, and this record must be certified as authentic by the highest public health agency in Zaire and a World Health Organization recognized NGO. Pres. Trump agrees, and the Sec. of State establishes immigrant visa application procedures which include within the review process the requirement of the vaccination record.

    But at the time the Sec. of State establishes this requirement, there is no available vaccine for the Ebola Zaire virus, so its impossible for any applicant to provide a vaccination record as required.

    The Sec. of State has “discriminated” against residents of the Congo in creating a different procedure for processing immigrant visa applications, and that is within the scope of the exception to the “non-discrimination” language of Sec. 1152(a)(1)(A), so that seems to be on solid ground.

    And he initially acted under Section 1182(f) so that public health officials could “determine the procedures” for processing immigrant visa applications.

    Can someone give me an analysis — legal or otherwise — that if Pres. Trump acted in this fashion in response to a virus outbreak, why is he not able to act in this fashion in the face of what he deems to be lax and ineffective vetting standards for nationals or travelers from 7 specific countries identified as having governments which have sponsored terrorism?

    shipwreckedcrew (e90d7c)


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