Patterico's Pontifications

2/2/2017

A Further Response to Andrew McCarthy on Trump’s Immigration Order

Filed under: General — Patterico @ 7:30 am



Andrew C. McCarthy has written a long piece at NRO’s The Corner responding to my critique of his column supporting the legality of Trump’s immigration order. I thank McCarthy for taking the time to respond, and I think his post helps clarify our areas of disagreement.

I neglected to make my respect for McCarthy as clear as I should have in my previous piece, which was written in my usual … energetic style. Let me rectify that now. McCarthy is truly one of the good guys — and this disagreement aside, I remain an admirer of his. He’s smart, thorough, principled, and an excellent writer.

However, his rebuttal does not convince me.

I’ll give you the same warning McCarthy gives his readers: “Readers with little or no interest in the legal esoterica underlying the president’s executive order” should go to the next post on this blog. Also, like McCarthy, I will assume that you are familiar with our previous back and forth linked above, as well as based on David Bier’s original New York Times op-ed that sparked the discussion.

McCarthy makes two arguments, one constitutional, and one statutory.

The statutory debate centers around whether Congress’s prohibition against discrimination in immigration based on nationality in 8 U.S.C. section 1152(a) conflicts with, and alters, the President’s powers to restrict immigration for public safety reasons under an earlier provision, 8 U.S.C. section 1182(f). McCarthy argues that the provisions are directed at different concerns; section 1182(f), by its text, “refers to threats to the nation’s security, not the nation’s racial or ethnic composition,” while section 1152(a) bars discrimination based on “the person’s race, sex, nationality, place of birth, or place of residence.” McCarthy concludes:

By my interpretation, they can easily be read in harmony: Congress has prohibited discrimination by classification based solely on racial or nationality grounds, but it has maintained discrimination by classification – including nationality grounds – if the president judges that it is temporarily necessary for the country’s protection. I would agree with Patterico that this construction would be problematic if I were pulling congressional intent out of my hat; but, again, I am relying on what Congress itself has said — and not in vaporous legislative history but in the text of the statutes in question.

Focusing on the sentences containing bold type, McCarthy here asserts that Congress has prohibited discrimination by classification based “solely” on nationality grounds, but “has maintained” discrimination by classification on nationality grounds … if the president judges it necessary for national security.

One notices two things: 1) McCarthy has imported the word “solely” into that analysis, when that word is not in the statute, and 2) this looks a lot like a conflict as applied to Trump’s actions, unless McCarthy can convince us that section 1182(f) authority functions as an exception to the 1152(a) nondiscrimination provision. Let me take these observations in turn.

First, by saying that discrimination “solely” on the basis of nationality is illegal, McCarthy suggests that the statute allows discrimination on the basis of nationality when coupled with another statutory provision (such as section 1182(f), for example). But neither the word “solely” nor its synonym appear in the nondiscrimination provision of section 1152(a):

(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.

That doesn’t say it’s illegal to discriminate “solely” on the listed grounds. It says it is illegal to discriminate on the listed grounds. (Yes, there are exceptions, but they are not applicable here — although the statute’s reference to those exceptions supports my case, as I’ll show in a moment.) If you both deny entry because of the immigrant’s nationality or place of residence and rely on another provision such as section 1182(f) as a justification for doing so, you’re still denying entry because of the immigrant’s nationality or place of residence.

So if you take out the word “solely” — a word that McCarthy imported into the discussion without any statutory basis — there is an evident conflict that can be resolved only if section 1182(f) is somehow an exception to the application of section 1152(a). This is the only way for the two provisions not to be in conflict in a case where a President seeks to exercise his 1182(f) authority in a manner that discriminates based on nationality, as President Trump did in his executive order on immigration.

Note that this is an “as applied” conflict, and not an “as written” conflict. McCarthy argues that the provisions are harmonious and do not contradict one another, invoking familiar canons of statutory interpretation, such as the admonition to read two separate statutes in harmony when possible, and the related principle that later statutes are not assumed to repeal earlier ones by implication. I agree with these principles. And, as written, he is right: the statutes as written can be harmonious with one another . . . as long as a President respects the nondiscrimination ban in invoking his 1182(f) powers. In other words, Congress may well have assumed that a President would indeed respect the nondiscrimination provision, as required by section 1152(a) — and if the President does so, there is no conflict. Put another way, one way to interpret the statutes as harmonious is to assume that both provisions apply, but that the later-enacted section 1152(a) creates an exception to the authority granted in the earlier-enacted section 1182(f). This would not be a “repeal” by implication, but rather a condition added to the earlier provision.

But if a President decides to exercise his 1182(f) authority by discriminating on the basis of nationality, as President Trump did in his order, then there is an evident conflict, which can be resolved only by arguing that section 1182(f) authority operates as an exception to the section 1152(a) nondiscrimination provision.

But section 1182(f) can’t be an exception to section 1152(a) — because section 1152(a) lists specific exceptions, and section 1182(f) is not one of them. Section 1152(a) says the nondiscrimination provision 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.” Guess what’s not listed there as an exception? If you said “section 1182(f),” you get the kewpie doll.

Since McCarthy cites canons of construction, the reader will hopefully forgive me if I cite one of my own: “Expressio unius est exclusio alterius” — a Latin phrase that means “the expression of one thing is the exclusion of the other.” By explicitly listing certain provisions as exceptions to the ban on discrimination by nationality or place of residence, section 1152(a) shows a Congressional intent to exclude any other contrary provision as an exception.

Thus, I take issue with McCarthy when he says:

Though Patterico says he prefers textualism to psychoanalysis, he offers no textual evidence that, in enacting 1152(a), Congress intended to repeal the allegedly inconsistent 1182(f) — no doubt because there is no such evidence to be had.

The textual analysis I just offered was contained in an update to my post — an update that I added at noon on January 29, three days before McCarthy’s piece was published. He may have missed it, of course, if he read it before I added the update. But McCarthy asserts that there is no textual analysis showing that section 1152(a) limits section 1182(f) authority in any way, and clearly such a textual analysis does exist: a clear statement that section 1152(a) applies “except as specifically provided in” other provisions, none of which is section 1182(f).

To sum up, I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.

This is enough, I think, to dispose of the statutory argument. The only other way to argue against this is to say that Congress, by passing 1152(a), didn’t “intend” to affect executive authority to suspend entry, which (in McCarthy’s words) “refers to threats to the nation’s security, not the nation’s racial or ethnic composition.”

This is what I was getting at when I said McCarthy’s argument flies in the face of textualism. I don’t doubt the sincerity of McCarthy’s devotion to textualism, and I’m sure he believes he is following the text here. But I don’t believe he actually is respecting the text here, his good and sincere intentions notwithstanding. Section 1152(a) says in relevant part that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s nationality . . . or place of residence.” It doesn’t add “unless the discrimination is not invidious” or “unless there is a good reason for the discrimination” or anything of the sort. Yet McCarthy seems to be reading in an implied provision along these lines.

This reminds me of the Halbig/King v. Burwell litigation, where the Supreme Court found that “established by the state” meant “established by the state or the Secretary of Health and Human Services.” The Court reached this astonishing result by transmogifying the plain language of the statute based on the Court’s idiosyncratic view of the overall structure of the ACA. Like McCarthy, the King v. Burwell majority purported to reach its conclusions based on explicit statutory language, and not based on legislative history or “psychoanalysis” or “extra-sensory perception,” all of which McCarthy says he rejects as a basis for interpretation. And I believe him, but call me old-fashioned: just as I think “established by the state” means “established by the state,” I also think that “no person shall . . . be discriminated against” on a specified ground means “no person shall . . . be discriminated against” on that ground. This is what I mean when I say that textualism commands the result I argue for here.

I’ve spent a lot of time on the statutory argument, but McCarthy says that the statutory argument is merely a backstop to his main argument: that the President has Article II authority to protect the nation, which includes the authority “to put down imminent threats to national security.” McCarthy emphasizes that these are not just his personal beliefs, but legal opinions based on precedent. Exercise of these powers requires a threat, McCarthy explains. What’s more, McCarthy argues, my citation of the Youngstown concurrence by Justice Jackson — an opinion that indicates that a President may not ignore specific Congressional directives that Congress has the power to make — is just that: a citation of a concurrence, not of a majority opinion.

As to Justice Jackson’s opinion being a concurrence, I know that McCarthy, with his extensive background in constitutional law in general, and the law applicable to terrorism prosecutions in particular (and this is not snark; anyone who knows about Andrew McCarthy’s background knows this is true), must be aware that the opinion of the Court in Hamdan v. Rumsfeld cited Justice Jackson’s concurrence in footnote 23 to this effect:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Justice Jackson’s concurrence may be a mere concurrence, but today it carries the force of law. So let’s not quibble over whether Jackson’s statement is the law. Let’s apply it to this case.

McCarthy says that, if we do, my position is still a losing one. Contrasting Trump’s actions with President Truman’s seizure of steel mills in the Youngstown case, McCarthy says:

Unlike Truman, Trump has acted in an area where presidential authority is []at its peak – namely, directly against aliens potentially threatening the homeland, not against domestic corporations and their workforces whose connection to a wartime threat overseas was attenuated. And unlike Truman, Trump acted completely consistently with a sweeping statutory grant of authority by Congress. That is why he was on such solid ground.

Note that the statutory interpretation argument I spent so much time on becomes part of the constitutional argument here, as it must. This is because, as I argued in my previous post:

[I]t 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.

If you follow the hyperlink under the phrase “plenary power” in that quote, you’ll see a link to the Supreme Court case of Kleindienst v. Mandel, 408 U.S. 753 (1972). Here is a quote from that case:

The Court, without exception, has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service, 387 U. S. 118, 387 U. S. 123 (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens.

This, by the way, is why we argued that Obama had no authority to make broad executive orders setting the conditions under which aliens would be admitted or excluded — because this is a Congressional matter. McCarthy says I “exaggerate[] the ‘plenary’ constitutional power of Congress to exclude aliens,” but in light of the language I just quoted you, I submit it’s hard to exaggerate that power. This is why McCarthy has to rely on his statutory arguments even in the constitutional context — because, to remain within the framework of Justice Jackson’s concurrence, McCarthy has to argue that Congress delegated some of this power to the President. Otherwise, it becomes tough to argue that the President can openly defy an explicit Congressional directive regarding immigration such as Congress set forth in the nondiscrimination provision of section 1152(a). This becomes a place where, as with Truman’s illegal seizure of the steel mills in the Youngstown case, presidential authority is at its lowest ebb.

I doubt anyone who already had a strong opinion about this topic will much have their minds changed by this back and forth, and I don’t necessarily expect that McCarthy will be excited to do yet another lengthy response (though I would certainly welcome it). At this point, I think our relative positions have been thoroughly argued, and — with the permission of Mr. McCarthy — I think I will paraphrase the Chief Justice’s line at the end of oral arguments and say, at this point:

The matter is submitted.

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

74 Responses to “A Further Response to Andrew McCarthy on Trump’s Immigration Order”

  1. Military construction and veterans act, voted in December 2015, has the language.

    narciso (72d34b)

  2. I understand the desire for McCarthy’s arguments to win the day. We all want a strong executive who will take seriously the threat some aliens pose. But your analysis is right. Congress has the authority to make immigration laws and Congress has clearly spoken. If we want a different law, and I think we do, then it is up to Congress to change the law.

    Thank you for this analysis, Patterico. Well done.

    DRJ (15874d)

  3. Congress wrote the last year, what am I speaking in sanskrit,

    narciso (72d34b)

  4. the new safety rules are working really great

    so far so good anyway

    happyfeet (a037ad)

  5. It wasn’t just the OLC which signed off, Bob Goodlatte detailed staffers from his committee to work with the transition team and they had input as well. Those staffers would be the people who actually formulated the language used in the bill to which Narciso refers and they will most probably be heavily involved in formulating the language used in immigration legislation proposed in the current session of Congress.

    The participation of Article I staffers does not moot the argument made by Pat but it does diminish the implication of intent to arrogate Article I authority to the Executive.

    Rick Ballard (0c6bf8)

  6. The intent doesn’t matter. Before Trump did this, Presidents have carefully crafted their Proclamations to avoid this problem but Trump’s writers didn’t, either because they were ignorant or didn’t care.

    And if the OLC did review this without raising this point — which I doubt — then the OLC did not do its job, and Trump might want to ask why. FWIW I don’t think it was reviewed.

    DRJ (15874d)

  7. Dude, just drop it, will you?

    You are a pop gun battling artillery. McCarthy is a legal genius, you’re not even a lawyer.

    Jared Nelson (ad2a37)

  8. DRJ,

    Intent doesn’t matter wrt adjudication but it does matter wrt observations regarding the tenor of the administration. The holdovers in the OLC might have provided a boobytrap and the Article I staffers may not have been in agreement with the EO as issued but the issuance does not appear to be particularly reckless.

    Rick Ballard (0c6bf8)

  9. @DRJ: Presidents have carefully crafted their Proclamations to avoid this problem

    Bush’s “Caribbean region” avoids the conflict? Then couldn’t Trump have avoided it by saying “Middle East” instead of referring to the 7 nations covered by the 2015 law?

    It seems odd to me that “Caribbean region” is not discrimination by nationality or place of residence.

    Gabriel Hanna (64d4e1)

  10. i thought andrew mccarthy was really good in st elmo’s fire

    Cruz Supporter (102c9a)

  11. I hope Jared’s being ironic. I find it hard to believe anyone who frequents your site doesn’t know that you’re a lawyer. 🙂

    I just wanted to pop in and say that, pace your penultimate paragraph, I disagreed with you but I think that you may have changed my mind. I’m still not sure McCarthy is wrong about the overall Constitutional status of 1152 (he suggested that it was an improper incursion into executive power in his opening article), but I think you’ve laid out a cogent case with regard to the two statutes.

    Thank you.

    Michael E. Lopez (4aff12)

  12. How about it is not ‘because of nationality’ but because the person is from a nation classed as a terrorist hotbed? e.g. not you are Somoli and therefore we deny visa because we don’t want Somolis, BUT, you are Somoli, and that STATE is on a watch list (or whatever) and therefore you cannot enter. The denial is not for nationality as it applies to a persons background, but for a circumstance about the nation they are coming from.

    Shana (72bf7e)

  13. This is like the kerfluffle over sb 1070

    narciso (c832e3)

  14. I think Trump could have avoided this by saying Middle East but then his order (which he should have called a Proclamation, if he was basing it on 8 USC 1@82(f)) would also have banned Saudi, Egyptian, Jordanian, Turkish and Israeli immigrants. I don’t have a problem with that but maybe that would have upset Trump’s foreign policy more than even he’s willing to do.

    DRJ (15874d)

  15. Can we stop there is a law with very narrow parameters, its been nearly a week, or is it hair on fire time again

    narciso (d1f714)

  16. @DRJ:f he was basing it on 8 USC 1@82(f)) would also have banned Saudi, Egyptian, Jordanian, Turkish and Israeli immigrants.

    Depends on how you define Middle East, doesn’t it? He could have referred to a definition in another law then for the list of countries he meant, it seems.

    Gabriel Hanna (64d4e1)

  17. Interesting tidbit the author of the downing street memo which helped topple tony Blair, rycroft is now the envoy to the uk

    narciso (d1f714)

  18. <a href="https://obamawhitehouse.archives.gov/the-press-office/2011/08/04/presidential-proclamation-suspension-entry-immigrants-and-nonimmigrants-“>Obama entered a Proclamation banning entry by aliens involved in terrorism. In practice, it was aimed at specific countries but applied to all. All recent Presidents have done it, but most of their Proclamations were more carefully worded than Trump’s. And as explained in the second link, the operative legal section is 8 USC 212(f). 8 USC 1182(f) is the statutory implementation provision.

    My instinct is that people are tired of lawyers using words to allow some things and disallow other things in what seems like a Willy-nilly fashion. It is unfortunate that the laws are so complex that they seem impossible to understand, but that’s where we are. In some ways, I see Trump as fighting back against the media and lawyers.

    DRJ (15874d)

  19. You can define words however you mean. Bill Clinton certainly did.

    DRJ (15874d)

  20. While I have not read all the links, I was wondering why no discussion of US v Curtiss-Wright in regard to the Presidents “plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations” not requiring any action by Congress. Add to this the Supreme Court’s statement in Knauff (a german wife seeking admission under the War Bride Act during WWII) regarding the executive branches inherent immigration authority, where it stated that the exclusion of aliens is a fundamental act of sovereignty. And suggested that the President possessed the inherent power to regulate immigration. “The right to [exclude aliens]stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Knauff could be read to limit the ability of Congress to limit the Presidents power in this regard or that the President has the power to override Congress under its inherent authority. Coupled with Custiss-Wright, there is a strong argument that the President has the necessary inherent executive powers to control immigration matters, should he seek to do so. I have missed reading further discussion on these cases, as they could make the statutory arguments moot.

    Greg (2eb833)

  21. @DRJ:You can define words however you mean. Bill Clinton certainly did.

    Laws have to define terms, doesn’t matter if Bill Clinton is involved or not.

    For example, “Great Lakes states” is defined by 42 US Code 1962d-20 as “each of the States of Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, New York, and Wisconsin.” As for the Great Lakes themselves, they are defined differently in different laws and programs, sometimes other bodies of water besides the canonical five are included.

    It is a perfectly legitimate thing to do to refer to a list defined in another law, there is not One True Definition of “Middle East” that everyone agrees on for every purpose. For example, does Egypt count? Not always. Does Iran count? Sometimes. What about Turkey? Most of the countries we think of now as “Middle Eastern” were called “Near Eastern” a few decades ago.

    Clarity would require a definition, and it would be hard to do for the “Middle East region” without a list of named countries, would it not?

    Gabriel Hanna (64d4e1)

  22. Maybe Bill Clinton was just a little ahead of his time in saying that it depended upon what the meaning of “is” is. Is Trump legally allowed to do this, is Congress legally allowed to do that? If you can get learned professionals arguing over what the meaning of the law is, it should at least be obvious that the meaning of the law isn’t clearly knowable. And it’s not really much of a law if it doesn’t draw a bright line clearly visible to all between what is permitted and what is proscribed, is it? You might just as well have one single law saying it’s illegal to do bad things, and as to what is considered a bad thing, well, we’ll let the jury decide that after you’ve been charged with doing a bad thing.

    Or maybe the law can just say that you have to make a “reasonable” effort and we’ll decide at your trial whether or not your reasonable effort was reasonable enough. You know, like they do in discrimination lawsuits where the definition of “reasonable” gets changed on a case-by-case basis.

    But at any rate the “rule of law” really doesn’t mean much if nobody knows what the law is or what it means or the law can be or mean anything you want it to be or mean. And if we’re not following any rules, or following whatever interpretation of the rules you choose to follow, it’s every man for himself and Devil take the hindmost. Maybe Trump’s just grabbing whatever he can while the grabbing’s good and maybe we should be doing the same. You can always justify it afterwards, or at least hire a good lawyer who can argue it was justified.

    Jerryskids (3308c1)

  23. I’ll be joining in later — under a filing deadline right now.

    But I would like SOMEONE to address the issue I’ve raised repreatedly – and which I thought Patterico was preparing to do a couple nights ago when he disagreed with my view that Bier didn’t address it with any substance:

    1. The EO is all about processes and procedures — it imposes the stay on entries while a review of the procedures currently being used to process applications, i.e., “Vetting”, takes place based on the concern that the level of vetting used by the previous administration was insufficient to safeguard the US from entry by immigrants who wish to do harm.

    2. Since Congress has expressly delegated to the Sec. of State the authority to determine the process and procedure for processing visa applications, and in connection with that authority Congress has EXPRESSLY amended 1152(a) to provide that in determining those procedures the Sec. of State may discriminate based on national origin,

    Then why is it the case that when there is a suspension of entries for visa holders based on a determination that the procedures which led to the issuance of the visas was insufficient, and new procedures need to be reviewed and implemented with regard to 7 specific countries, that discrimination by the Sec. of State should not be deemed authorized by the 1996 Amendment.

    Remember, in the 1996 Amendment, the Congress said that the Sec. of State was authorized to require Vietnamese nationals to leave Hong Kong and go back to Vietnam in order to apply for an immigrant visa, but all other nationalities living in Hong Kong could apply for an immigrant visa without returning to their home countries.

    That was explicit discrimination against the Vietnamese, and the 1996 amendment to 1152(a) made the discrimination within the authority of the Sec. of State.

    Now the Admin wants to begin subjecting nationals of 7 specific countries to an “extreme vetting” not required of other countries, and its pausing immigration while it gets those new procedures in place. Why is that discrimination in violation of 1152, as amended, which allowed for a discriminatory procedure to be imposed on the Vietnamese?

    Have yet to see a substantive answer.

    shipwreckedcrew (56b591)

  24. Jerryskids (3308c1) — 2/2/2017 @ 12:28 pm

    And it’s not really much of a law if it doesn’t draw a bright line clearly visible to all between what is permitted and what is proscribed, is it?

    this was something that was expected only to be done very rarely, and only when justified by the facts, so nobody really went into what were the limitations on what a president could do pursuant to 8 U.S.C. section 1182(f).

    Whatever thought did go into it, mostly went into it before 8 U.S.C. section 1152(a) was enacted, and probably nobody gave a thought, when it was enacted in 1965, as to how it might affect, if at all, 8 U.S.C. section 1182(f), enacted in 1952.

    Sammy Finkelman (9974e8)

  25. @SWC: Why is that discrimination in violation of 1152, as amended, which allowed for a discriminatory procedure to be imposed on the Vietnamese?

    I think the argument might be that Congress wrote in the exception explicitly, and if they didn’t write in any others we’re not allowed to assume them.

    @Sammy Finkleman: probably nobody gave a thought, when it was enacted in 1965, as to how it might affect, if at all, 8 U.S.C. section 1182(f), enacted in 1952.

    The text of the 1965 act makes this very clear. It describes which sections are amended and how. 1182(f) was not mentioned as being amended.

    Gabriel Hanna (64d4e1)

  26. The problem I have with all this word parsing is the divorce of analysis from the concept of mens rea.

    So Congress has made a virtue signalling shorthand statute – no discrimination based upon specific generic factors (race, religion, national origin, . . .) – in order to end immigration preferences for those who shared our Western Culture. (A big mistake, by the way.) What the Statute did not define was what the heck does “discrimination” mean?

    In an employment statute – case law tells us “discrimination” requires an intentional animus or one that causes a disparate impact. Is it rational to import the easy “disparate impact” standard, or should we read the Immigration Statutes to only ban “wrongful” executive conduct. (Can we please agree not to argue circularly, or imply wrongful conduct to the Trump Administration without evidence?)

    It seems to me absurd to read “disparate impact” into the Immigration statute – this would remove any kind of self preservatory discretion whatsoever.

    This is the point of those who see the idiocy of “any national origin discrimination” demanding strict interpretation.

    Now a more recent Immigration Statute requires the Executive to use discretion specifically to protect the nation from potential spies/terrorists/saboteurs.

    Notwithstanding the interpretive requirement that a later statute does not “impliedly” amend a former statute – when those statutes are read together they are to be read so as to be compatible, if possible, moreover they are to be read to avoid “constitutional question.” As is an Executive Order put in place to effect the statutes, so interpreted.

    Lets look at the actual language of the EO:

    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 under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

    (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 described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

    (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), 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).

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

    (f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

    (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.

    Now, in 2016, the Obama administration listed 7 nations as state sponsors of terror, from which the State Department must take special care to protect the US. The Trump 2017 EO accepts the Obama Admin analysis, and incorporates that list temporarily, in order to do a better job with regards to Immigration than the Obama Admin wanted to do. It seems conclusive to me that:

    1. The list of terror sponsor states by the Obama Administration was not with the intent to discriminate against individuals based upon their nationality.
    2. Requiring further and ongoing analysis of bad state actors is an appropriate subject for an Executive Order on the enforcement of Immigration laws, and not intentionally discriminatory.
    3. The purpose of the Trump EO was to tighten up on perceived weakness in prior Immigration enforcement.
    4. Utilizing a non-discriminatory listing of locations requiring heightened national security efforts is not the illegal discrimination against individuals outlawed by Congress.
    5. Section 3(g) is absolutely a savings clause – if an aggrieved immigrant can show he was delayed or denied entry for reasons other than the appropriate national security review, then he has evidence of intentional discrimination that the Administration may not perform. Otherwise this is a rational EO well within the statutory authority. But, this is then an “as applied” question, not one that requires the rewriting of the EO, or the statutes.

    How else can the legitimate purposes stated in the EO be accomplished?

    In reality, I don’t see how the statutes can be read otherwise, and still comport with the Constitutional authority of the Executive with regards to the duty to protect the nation.

    Steven Malynn (d29fc3)

  27. shipwreckedcrew (56b591) — 2/2/2017 @ 1:09 pm

    “Vetting”, takes place based on the concern that the level of vetting used by the previous administration was insufficient to safeguard the US from entry by immigrants who wish to do harm.

    The problem there is taht there actually was nothing wrong with the vetting, especially in the case of refugees who had been outside the country for several years.

    The vetting that couldn’t do done was something that, apparently, bureaucrats attach great importance to, but is actually of limited worth – the passport issuing government of person being vetted being trusted to report if there was an indication of a connection to terrorism by this person.

    And this requirement to have the governments of Iran, Iraq, Syria, Yemen, Libya, Sudan and Somalia to be both capable and willing to so report, was applied in a very bureaucratic way – it didn’t matter how long it had been since someone had been in the country in question, so long as they were still a citizen of it; and it didn’t matter how long someone had resided in the country in question, so long as they were not a citizen of it. I am 90% certain this works in this bureaucratic way.

    It didn’t apply at all either, to some other countries that actually shouldn’t be trusted, especially Pakistan (although the number of terrorists who have emigrated from Pakistan can be counted on the fingers of one hand)

    Then why is it the case that when there is a suspension of entries for visa holders based on a determination that the procedures which led to the issuance of the visas was insufficient,

    You have to read between the lines. I knows exactly what is supposedly wrong with the vetting, even if Paul Ryan doesn’t, because it was discussed in the news last year, albeit piecemeal.

    The vetting requirement that they want would make it, not difficult, but absolutely impossible for anyone who remained a citizen of those countries to pass the vetting including Iraqisa who served as translators for the U.S. military.

    What they can’t get is a clean bill of good health from the governments of Iran, Iraq, Syria, Yemen, Libya, Sudan or Somalia because the U.S. State Department doesn’t consider the governments of these countries to be both capable and trustworthy of informing us whether the persons in question had or had not a terrorist connection. Iraq, Libya, Yemen and Somalia have governmebnts they trust but which don’t control all their terriitory, and the governments of Iran and Sydan aren’t trusted, and the government of Syria fits into both categories.

    Now maybe they can come back with a report in three or four months that says: “Oh, you know, that doesn’t really matter after all.”

    Now the Admin wants to begin subjecting nationals of 7 specific countries to an “extreme vetting”

    THAT’S NOT TRUE

    It isn’t extreme vetting. That would be cross examination and loads of references.

    I am 95% certain of exactly what they want. It’s for the governments in which the would-be immigrant is apassport holdr being both able and willing to do something.

    It’s actually requiring the “vetees” to get one thing included in the kind of vetting that all immigrants, but they can’t get.

    Donald Trump is just misleading people, or misinformed himself.

    Sammy Finkelman (9974e8)

  28. If Biers is right, wouldn’t it be illegal for the president to ban or restrict immigration from any specific region, possibly under any circumstances? Because the minute he says “I temporarily stop immigration or limit quota from country X” while country Z is unaffected, then that would be discriminatory by default.

    The immigration law was likely written to stop prejudice – like Trump lowering immigration quota from Mexico to make more room for white European immigrants, and similar scenarios. In my mind, that’s not what Trump did. It would be similar to placing a quarantine on an entire region hit by an outbreak of disease. The fact that everyone affected was born there would be incidental.

    I think Trump opted for a power play to address a sensitive situation that requires a nuanced approach. But I’m at least hoping that Mccarthy is right. The immigration law makes no sense to me if the letters of the law is strictly enforced. The 2A says I have a right to bear arms, but in practice I cannot own a tank or a fighter jet. Can no exceptions be made?

    lee (55777a)

  29. Sammy I call BS on your assumptions:

    The problem there is taht there actually was nothing wrong with the vetting, especially in the case of refugees who had been outside the country for several years.The vetting that couldn’t do done was something that, apparently, bureaucrats attach great importance to, but is actually of limited worth – the passport issuing government of person being vetted being trusted to report if there was an indication of a connection to terrorism by this person.

    And this requirement to have the governments of Iran, Iraq, Syria, Yemen, Libya, Sudan and Somalia to be both capable and willing to so report, was applied in a very bureaucratic way – it didn’t matter how long it had been since someone had been in the country in question, so long as they were still a citizen of it; and it didn’t matter how long someone had resided in the country in question, so long as they were not a citizen of it. I am 90% certain this works in this bureaucratic way.

    It didn’t apply at all either, to some other countries that actually shouldn’t be trusted, especially Pakistan (although the number of terrorists who have emigrated from Pakistan can be counted on the fingers of one hand)
    Then why is it the case that when there is a suspension of entries for visa holders based on a determination that the procedures which led to the issuance of the visas was insufficient,
    You have to read between the lines. I knows exactly what is supposedly wrong with the vetting, even if Paul Ryan doesn’t, because it was discussed in the news last year, albeit piecemeal.

    Exactly Zero of those conclusions are yours to make. I guess an aggrieved immigrant could challenge the entire EO as a pretext, but that is for a jury to determine, not you.

    Steven Malynn (d29fc3)

  30. 27. It seems to me absurd to read “disparate impact” into the Immigration statute – this would remove any kind of self preservatory discretion whatsoever.

    That’s why Andrew McCarthy added the word solely

    Note this:

    (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…in order to determine that the individual seeking the benefit is who the individual claims to be

    That’s the sticking point.

    Some countries can’t be relied on at all. That’s the idea.

    However, in the real world, you actually can determine this other ways. Fingerprints on record somewhere, for instance. DNA matches to people outside the country. In fact this is sued in the case of people who purportedly are recently born children of other people.

    Sworn testimony by people who have a pre-existing connection to that person is another way that could be used. And it’s not like all other countries are 100% reliable. One of them is Russia.

    There’s also a lot of people whose identity at birth can’t be proven. But you still can rule out terrorism. A terrorist connection must be fairly recent.

    Sammy Finkelman (9974e8)

  31. You do not need to rely upon the word solely. McCarthy was wrong to argue that way, imho.

    Steven Malynn (d29fc3)

  32. It is difficult to define the Middle East countries but I don’t know any definition that includes the 7 countries Trump included but excludes countries like Jordan, Egypt and Israel.

    DRJ (15874d)

  33. Sammy at 28 — that’s not a judgment where the court gets to substitute its view for the Executive. The authority over determining procedures is vested by the Congress in the Sec. of State. Its not the place for the Courts to weigh in on whether existing vetting is good enough or not good enough.

    shipwreckedcrew (56b591)

  34. I’m not sure there is a “Middle East”. That’s a short hand reference to countries in the greater Mesopotamia and Persian areas of Southern Europe (Turkey) Africa and Asia.

    And I think this is one of the big Strawmen that Bier’s argument rests upon — he rails against Trump “banning people from an entire region of the world.” Um, well, he didn’t.

    Somalia is on the coastline of the Horn of Africa.

    Sudan is more of a Central African nation, with a small coastline on the Red Sea.

    Libya is a North African country on the Mediterrean.

    Yemen is the very southern most portion of the Arabian Peninsula.

    Iraq, Syria, and Iran make up greater Mesopotamia and Persia.

    These countries are not contiguous with each other, and they have many contiguous neighbors who are not part of the EO.

    The only thing they have in common is that they are failed states and/or have radical islamist governments that have been determined by the State Dept to be state sponsors of terrorism.

    shipwreckedcrew (56b591)

  35. birotte , re the daily caller, screwed up his decision, not having followed new developments.

    narciso (d1f714)

  36. Back to the EO:

    The Secretary of Homeland Security, has to conduct a review to determine the information needed from any country – that’s its government – …to determine that the individual…is who the individual claims to be, and [separately] is not a security or public-safety threat. Then, within 30 days [of January 27 = February 26 or 27] he submits a report that provides a list of countries that do not provide adequate information.

    Then the Secretary of State shall request all foreign governments that do not supply such information to start providing such information within 60 days of notification.

    So now we have a total of 90 days. During these 90 days, 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), – that’s the seven specified countries – is suspended except for 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, and those whom, on a acse by case basis, the Secretaries of State and Homeland Security declare their admission is in the national interest.

    At first it seemed to apply to green card holders – that is now entirely missing but it does seem to apply to those on any kind of visa who have temporarily left the United States, and also people who may have passports from more than one country if one of them is on the list of seven.

    After the 90 days are over, 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 any admissions, except for that list of diplomatic and other similar visitors.

    It does not say that anyone would undergo “extreme vetting” or that the Secretary of Homeland Security shall list what substitute proofs can be submitted by the alien in the absence
    of co-operation from their country of citizenship.

    It also says that at any time the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

    It doesn’t say what the problem is, but it’s easy to see: In some cases making sure tgahta terrorist is not impersonating a citizen, which mainly applies to Syria, and gettinga reliable declaration from the governments in question that the person in question is not a security or public-safety threat.

    If the government of which a person is a citizen of does not satisfy the Secretary of Homeland Security, such a person can do absolutely nothing to be succesfully vetted.

    Sammy Finkelman (9974e8)

  37. The United States actually knows how to recognize false Syrian passports because they know the serial numbers that were actually used. (newspaper story months ago)

    30. Steven Malynn (d29fc3) — 2/2/2017 @ 1:58 pm

    Exactly Zero of those conclusions are yours to make….that is for a jury to determine, not you.

    I wasn’t saying this was the last word, but it is what I think is most likely to be true, and much more likely than the opposite.

    There are probably things in what I said that are wrong, but I am likely to be wrong only on the margins.

    Of course what the Secretary of Homeland Security reports, President Donald J. Trump can revise the whole thing and actually put in “extreme vetting” but the Secretary of Homeland Security is not being told to give any kind of advice to the president about anything except what governments need to do and what governments should have entry by their citizens banned.

    Sammy Finkelman (9974e8)

  38. 35. David J. Bierjab seems to have attempted to exaggerate his case, unless he’s arguing that just Trump banned admission from some specified countrues, he could, if thsi is legal, also do that for a whole region of the world. Or maybe some of these countries, like Libya, are big enough to be a region, or Iran, Iraq and Syria constitute a “region.”

    Technically no countries are being banned – just countries whose governments do not satisfy the requirements of the United States Secretary of Homeland Security, with final approval of the list, and any additions (no provision seems to have been made for removal) left up to the president of the United States. And because of that the Secetary of State is also consulted.

    This is an extremely close to declaring all citizens of those countries, not already admitted as permanent residents, enemy aliens.

    Sammy Finkelman (9974e8)

  39. No sammeh, he lied about the unprecedented nature of the regulation, ignord the legislation that underpinned it.

    narciso (d1f714)

  40. 36 — I said yesterday that Birotte is an idiot. Not sure how the case ended up with him on an emergency petition, but I’m 100% certain other CD Judge are cringing in fear of what he’s going to pump out in all their names.

    shipwreckedcrew (56b591)

  41. Out here in fly-over country, we gap-toothed hicks are too dumb to understand all this fine lawyer talk with all the careful parsing of words and nuances of phraseology.

    The only thing we are capable of understanding is the big things, the broad concepts.
    What we hear is: Trump wants to keep out immigrants from countries that hate us and want to terrorise us. OTOH, fine lawyers want to prevent Trump from protecting us from these bad guys.

    What to do, what to do? Decisions, decisions. Which of these messages do you think sounds best to us? I think happyfeet might have an opinion to offer on that.

    fred-2 (ce04f3)

  42. Here is what Birotte should have done:

    He should have considered the emergency petition, given the US Attorney’s Office 48 hours to respond, and then set a hearing for the day after the response. In 3 days he would have had a much more complete factual basis upon which to issue his TRO.

    As it stands, he considered only the moving papers, so he was stuck with whatever ERRORS were contained in the moving papers.

    If you haven’t read the news report, what has happened is that Birotte’s order protects anyone from the 7 countries who possesses a validly issued visa, and bars the government from blocking them from entering if they attempt to use their validly issued visa.

    The problem with his order is that two days before the petition was filed, DHS cancelled all the visas that were issued to nationals of the 7 countries. Birotte could have ordered that all visas issued on or after a certain date shall remain valid, or shall be reinstated. But what he ordered instead doesn’t protect anything because when he issued the order there were no valid visas in the hands of anyone from those 7 countries.

    shipwreckedcrew (56b591)

  43. It goers with whole kabuki nature of this event, shipwrecked.
    chkrd

    narciso (d1f714)

  44. Patterico’s statutory analysis may hold up, but don’t we in fact have a considerable history since 1965 of treating people differently based on national origin? (And not just for 90 days to improve security.) We have treated people from belligerent countries differently than people from friendly countries. We have favored Cubans over Haitians. We have favored Russian Jews over other Russians. We have favored Vietnamese boat people. Were these decisions illegal? Were they statutory exceptions to an otherwise standing 1965 proscription?

    David Pittelli (0a4463)

  45. If the President lacks the authority to modify admission requirements and procedures for alien arrivals from war torn or terrorist sponsoring nations then I guess it’s not his fault if any bad actors manage to walk through customs. In that case Congress better get busy and fix it, right?

    crazy (d3b449)

  46. But congress did, forget it, pretend the narrative is the truth.

    narciso (d1f714)

  47. The EO doesn’t discriminate on the basis of nationality – it discriminates on the basis of what kind of government a country that a person is unfortunate enough to be citizen of and has a passport from has, and maybe what kind of relationship that country has with the United States. I am not sure that 8 U.S.C. section 1152(a) was intended to cover that type of discrimination.

    I also think nobody even imagined that a president could forbid all entry by citizens of a country whose government didn’t meet U.S. government standards for reliability or throughness of background checks.

    If this was a problem, the United States might not ever have admitted any person from a Communist country who defected. That person’s home country could never be relied upon for any routine thing – it might even be demanding the person be sent back!

    The whole concept of what President Trump has done is antithetical to the whole idea of a refugee.

    Sammy Finkelman (9974e8)

  48. David Pittelli (0a4463) — 2/2/2017 @ 5:10 pm

    (And not just for 90 days to improve security.)

    90 days to decide which countries’ citizens go on a blacklist. And more can be added earlier or later.

    For the time being, seven specific countries are named, but in April President Trump might change the list.

    Does anyone know what exactly 8 U.S.C. section 1152(a) was supposed to do? Wss it even necessary, given what else the 1965 law did? I think that whole section just talks about limitations of the number of visas for one country or another. And that’s more citizenship of birth, not current citizenship.

    Sammy Finkelman (9974e8)

  49. Uh Oh, looks like Patterico and Andrew McCarthy may be primed to have another discussion.

    CNN-Crowley-Smear

    http://www.nationalreview.com/corner/444512/anti-trump-media-attack-monica-crowley

    elissa (fb919d)

  50. Cnn lies for a living, as it happens Michael anton, decius, ended up with crowley’s job

    narciso (d1f714)

  51. Patterico’s statutory analysis may hold up, but don’t we in fact have a considerable history since 1965 of treating people differently based on national origin? (And not just for 90 days to improve security.) We have treated people from belligerent countries differently than people from friendly countries. We have favored Cubans over Haitians. We have favored Russian Jews over other Russians. We have favored Vietnamese boat people. Were these decisions illegal? Were they statutory exceptions to an otherwise standing 1965 proscription?

    I could be wrong, but I believe those cases all involved refugees. As I have made clear since my original post, discrimination against refugees by nationality is permitted by statute.

    Patterico (115b1f)

  52. Now a more recent Immigration Statute requires the Executive to use discretion specifically to protect the nation from potential spies/terrorists/saboteurs.

    No. Not more recent. That provision came first. The nondiscrimination provision came second.

    Patterico (115b1f)

  53. i discriminate the eff out of refugees by nationality

    no no no no maybe no maybe maybe no no no no

    oh and hell no

    (this is me reviewing the proffered refugees)

    happyfeet (28a91b)

  54. The list of terror sponsor states by the Obama Administration was not with the intent to discriminate against individuals based upon their nationality.

    More importantly, it was done through an explicit delegation of authority from Congress. But that delegation was not a free for all, as so many (including narciso, and yes, sometimes it does seem like Sanskrit) seem to assume. It was a specific delegation of authority to disallow selected countries from a visa waiver program. That does not confer on the President authority to suspend entry more broadly.

    Patterico (115b1f)

  55. Well the order wAS pursuant to that piece of legislation, now Durbin fEinstein and leahy may pretend they were not enablers but they were.

    narciso (d1f714)

  56. Justice Department released memo on legal review of Trump EO on immigration today showing the OLC concluded “the proposed order is approved with respect to form and legality.”

    crazy (d3b449)

  57. Patterico, the point I am making is there is no evidence of intent to discriminate against an individual (malice discrimination), as opposed to categorizing a group from a risky local for more scrutiny (disparate impact discrimination) – to round my circle – it is a suicide pact to require Immigration determinations to be deterred by/based on disparate impact analysis.

    So the Statute gave the Executive complete discretion “over all classes” for the purpose of national security decisions, and later – without reference to national security decisions – bars discrimination against specified classes. I’m thought the ’52 statute was amended to grant more discretion, but if you are saying the discretion was always there – unless the ’65 statute removed the discretion explicitly the discretionary language is still operative regarding all classes of individuals.

    I think the timeline works against your analysis.

    Steven Malynn (d29fc3)

  58. I haven’t got the time to read the whole back and forth, but there’s one thing that I think you may be missing. If you’ve already addressed this I apologise.

    As I understand it your criticism relies entirely on the statute that bans national origin discrimination in the issuance of visas. When I looked at it I didn’t see anything about discrimination in admission to the USA. As I’m sure you know, a visa is not an entry permit; all it does is give the holder permission to present himself at a point of entry and apply for admission. To the best of my knowledge immigration officers have the power to refuse this application at their sole discretion, for any reason at all or none at all. As I have (perhaps incorrectly) understood it for years, some of these officers are petty tyrants who abuse their power and deny people entry for ridiculous reasons, just because they can, knowing that their victims have no legal recourse. It would seem to follow, however, that the president can certainly instruct them to exercise this power in a manner that he believes is in the nation’s interest, and that no law prevents him.

    Ne c’est pas?

    Milhouse (40ca7b)

  59. Milhouse:

    Bier’s original op-ed 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. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

    Patterico (f56c1e)

  60. I’m thought the ’52 statute was amended to grant more discretion, but if you are saying the discretion was always there – unless the ’65 statute removed the discretion explicitly the discretionary language is still operative regarding all classes of individuals.

    You have not addressed the argument from my post. It says except as provided in these provisions, and the provision you rely upon ain’t one of the exceptions.

    Patterico (f56c1e)

  61. Patterico, the point I am making is there is no evidence of intent to discriminate against an individual (malice discrimination), as opposed to categorizing a group from a risky local for more scrutiny (disparate impact discrimination) – to round my circle – it is a suicide pact to require Immigration determinations to be deterred by/based on disparate impact analysis.

    “It’s a suicide pact” is often shorthand for “we just can’t be expected to follow this law!” but the solution is simple: get Congress to change the law. In any event I don’t agree that Congress’s nondiscrimination provision is a disparate impact provision. Trump is indeed targeting certain nationalities, not announcing general policies that just happen to fall heavier on those nationalities. Sure, he has a non-racist/xenophobic motivation for it, which is why I support the policy and suggest that Congress change the law. But it does violate the law.

    Patterico (f56c1e)

  62. How you get there is important. So, so important. It really is. No, it really is. It’s important, OK? Really important.

    Patterico (f56c1e)

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

    Don’t he and you have that backwards? The law bars discrimination in issuing visas, not in admission to the country. If the law says (as he claims) that someone who is not going to be admitted can’t be issued a visa, that doesn’t turn lawful discrimination in admission into unlawful discrimination in visa issuance. It just means that as a result of this lawful discrimination there is now a non-discriminatory reason why they must be denied visas. I don’t see the problem with that.

    Here’s a forinstance. Suppose the following completely hypothetical laws: (1) It is lawful to discriminate on the basis of sex in employment but unlawful to do so in banking; (2) Unemployed people may not have bank accounts. Would you say that as a result of law #2 firing someone because she’s a woman now constitutes unlawful discrimination in banking?! Or that if the bank complies with law #2 by canceling her account it’s violating law #1 by discriminating against her? I don’t think so. Her boss fired her lawfully because he’s not discriminating in banking, and the bank’s reason for canceling her account is completely non-discriminatory. Nor do I see how it would make any difference if the bank is the employer; it’s still entitled to fire her and then cancel her account, even though it can’t cancel the account without firing her. I hope the analogy is clear.

    Milhouse (40ca7b)

  64. (1) It is lawful to discriminate on the basis of sex in employment but unlawful to do so in banking; (2) Unemployed people may not have bank accounts

    Closer is this:

    (1) Year 1: Rule 1 is passed.

    (2) Year 2: Rule 2 is passed.

    (3) Year 3: Rule 3 is passed, which says banks may choose to give out bank accounts or not, based on their assessment of whether the account will improve the financial status of the bank.

    (4) Year 4: Rule 4 is passed, which says: Except as provided in Rules 1 or 2, banks may not discriminate in the awarding of bank accounts on the basis of an applicant’s employment status.

    You’re saying the bank can refuse to award a bank account to all unemployed people, stating explicitly that they believe unemployed people having bank accounts does not improve the financial status of the bank and thus they are following Rule 3.

    I say Rule 3 was limited to the extent Rule 4 applies, because rule 4 carved out exceptions and Rule 3 was very pointedly not one of them.

    If you don’t like the rule, change it in the right way.

    Patterico (f56c1e)

  65. re: #65 – the problem with your analysis is the two competing statutes cover overlapping rules – not the same set of rules.

    I still think you gloss over both the intent question and the underlying purpose of the competing statutes – interpretation of the statutes requires they be read so that they are complementary, not cancelling – when a statute does not explicitly excise the words of another statute.

    Steven Malynn (d29fc3)

  66. So a federal judge in WA state has handed down a full TRO against the Immigration Freeze order, on a request from WA state.

    https://drive.google.com/viewerng/viewer?url=https://assets.documentcloud.org/documents/3446169/Robart-Order-20170203.pdf

    If you read this he seems to have made up the state’s standing (people have rights and therefore the state has standing! I kid you not.), then asserted without even a hint of his reasons that the state is likely to prevail on the merits, whatever they are.

    http://www.usatoday.com/story/news/2017/02/03/report-federal-judge-refuses-block-trump-immigration-ban/97466178/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=usatoday-newstopstories

    Kevin M (3bacd7)

  67. Re the heavy, this judge a for partner in Powell and miller, has shim distressing signs of illogical before, as the heavy notrs

    narciso (d1f714)

  68. Can someone translate that from narciso? I feel like I’m reading a Forth program.

    Kevin M (3bacd7)

  69. That journalistic font includes his statements on someluvesmatter and his high fines against unions. One can see how this Elle wood logic would fly

    narciso (d1f714)

  70. Stephen Malynn says:

    re: #65 – the problem with your analysis is the two competing statutes cover overlapping rules – not the same set of rules.

    I still think you gloss over both the intent question and the underlying purpose of the competing statutes – interpretation of the statutes requires they be read so that they are complementary, not cancelling – when a statute does not explicitly excise the words of another statute.

    As a textualist, I look to the original understanding of the words as they would be understood by the public at the time of passage, and I don’t alter the meanings of those words in accordance with an intent that is not plainly expressed in the words of the law.

    As I argued in the post, the statutes can be read as complementary — as long as the President obeys 1152(a), he can exercise 1182(f) authority.

    As for explicitly excising the words of the statute, again, I believe I have made the argument both in the post and at comment 65. If you are going to discuss this with me, you have to grapple with the principle I articulated that “the expression of one thing is the exclusion of the other” — meaning section 1152(a) did indeed exclude 1182(f) from the list of exceptions to its application, by naming other provisions as exceptions, and not 1182(f).

    I have yet to see one person — not SWC, you (Stephen Malynn), Milhouse, Andrew McCarthy, or anyone else — confront that argument head-on. If someone has, I missed it. Please link me to that discussion. But please don’t repeat arguments that do not confront that argument directly.

    As for this:

    re: #65 – the problem with your analysis is the two competing statutes cover overlapping rules – not the same set of rules.

    Maybe that is an attempt to confront the argument, but I don’t completely understand what you are saying. Where they do overlap — where a President tries to apply 1182(f) but is violating 1152(a) — is precisely what we are discussing here. I don’t care about any situation outside that overlap.

    Patterico (115b1f)

  71. Kevin M (3bacd7) — 2/3/2017 @ 7:11 pm

    If you read this he seems to have made up the state’s standing (people have rights and therefore the state has standing! I kid you not.),

    The state’s standing is based upon the fact that the state operates universities, and that students and I suppose you can say even more so, professors, are detained, and their operations are going too be interfered with. You really don’t need all that much for standing.

    Standing is something that on the one hand, court doctrine ma make very toufg, and on the others judges may grant it ona rather flimsy basis, particualrly when something affects many people, and they want it to be tested.

    then asserted without even a hint of his reasons that the state is likely to prevail on the merits, whatever they are.

    That’s probably the question.

    It is easy enough to say that president’s determination has no basis in fact, and it doesn’t – it’s quiote correct snd almost indisputable that “there’s no support” for the argument that “we have to protect the U.S. from individuals” – and that conclusion is probably needed to decide which side is going to suffer irreparable harm – – but does that suffice to lose the authority to do what he did?

    Is the president required to act rationally, or does he have absolute discretion?

    That’s I think the only really judiciable issue here, although I guess there’s this other question of what exactly does the law authorize or forbid the president to do – is Law B, pased in 1965, a restriction on Law A ased in 1952, and, if so, of what kind?

    There may be some other grounds for not allowing the conduct or capacity of a foreign government to rule out both immigration and visitation by nationals of that country.

    In any case, we all really have to recognize that Congress certainly didn’t intend any restriction of this nature to be imposed lightly, and that’s what this was, especially in its broadness. But that may not have any bearing on the president’s legal authority – although we do get into issues of how much authority can be delegated. I don’t think rqual protection is an issue.

    Sammy Finkelman (9974e8)

  72. 55. Patterico: Patterico (115b1f) — 2/2/2017 @ 6:43 pm

    [The list of terror sponsor states by the Obama Administration] was a specific delegation of authority to disallow selected countries from a visa waiver program. That does not confer on the President authority to suspend entry more broadly.

    The list comes from there, but the Adminsitration isusing it, not as a legal basis, butas an argument that the list is not arbitrary.

    It seems like people in the Office of Lega; Counsel thought the president could not impose such restrictions willy nilly. If so, there’s a good argument to be made that it’s still willy nilly, even though they took a pre-existing list (created for some other purpose)

    But I don’t know if the lawyers suing will make it. They’re all very fond of the 14th amendment, whether it applies or not, and they don’t know what the legal analysis of the OLC was, so they don’t know the vulnerabilities.

    Sammy Finkelman (9974e8)

  73. http://reason.com/blog/2017/02/03/in-bowling-green-fbi-foiled-fbi-plot

    1. The plot was concocted entirely by the FBI.

    2. It did not involve plans to attack in the U.S.

    3. It’s in rare company.

    Left out here by Reason: They were real inactive or former terrorists – that’s why they were targeted in the sting operation. One or both had fingerpints on unexploded improvised explosive devices, and so probably had been responsible for the death of American soldiers. Their motive fpr coming to the USA was to get away from it all.

    Later on, Iraqis started being checked against fingerprints found on unexploded improvised explosive devices.

    heavy.com/news/2017/02/bowling-green-massacre-plot-iraqi-refugees-kellyanne-conway-trump-video-waad-ramadan-alwan-terrorists-terrorism-kentucky-al-qaeda-iraq-mohanad-shareef-hammadi/

    Sammy Finkelman (9974e8)


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