The Jury Talks Back

1/30/2017

Justin Amash’s Statement on Donald Trump’s Immigration Order

Filed under: Uncategorized — Patterico @ 9:30 am

There are few politicians I still respect in Congress. Two that stand out in my mind are Sen. Mike Lee and Rep. Justin Amash. Rep. Amash published a well-argued statement on Donald Trump’s executive order on immigration yesterday, and I think it’s worth reproducing here. Emphasis is mine:

Like President Obama’s executive actions on immigration, President Trump’s executive order overreaches and undermines our constitutional system. It’s not lawful to ban immigrants on the basis of nationality. If the president wants to change immigration law, he must work with Congress.

The president’s denial of entry to lawful permanent residents of the United States (green card holders) is particularly troubling. Green card holders live in the United States as our neighbors and serve in our Armed Forces. They deserve better.

I agree with the president that we must do much more to properly vet refugees, but a blanket ban represents an extreme approach not consistent with our nation’s values. While the executive order allows the admittance of immigrants, nonimmigrants, and refugees “on a case-by-case basis,” arbitrariness would violate the Rule of Law.

Ultimately, the executive order appears to be more about politics than safety. If the concern is radicalism and terrorism, then what about Saudi Arabia, Pakistan, and others?

Finally, we can’t effectively fight homegrown Islamic radicalism by perpetuating the “us vs. them” mindset that terrorists use to recruit. We must ensure that the United States remains dedicated to the Constitution, the Rule of Law, and liberty. It can’t be stated strongly enough that capitalism creates prosperity and improves assimilation into society.

That is a stirring statement of values that makes me proud to be a supporter of Amash’s. I’m not in total agreement with him on every aspect of the statement, as I am not opposed to the notion of a blanket short-term ban on refugees from countries like Syria. Such countries are likely to send us some terrorists who pose a danger to our citizens, as well as other radical supporters of ISIS and sharia who cannot assimilate into a culture of freedom and classical liberalism. Nor am I opposed to a more general short-term ban on immigration from those countries, if done in a constitutional manner, in consultation with Congress. Perhaps my mind could be changed by arguments made in a free and open debate held in Congress, but I doubt it. Right now, like many Americans, I watch what is happening in Europe and I don’t want that to happen to my country.

That disagreement aside, freedom-loving people should be able to agree that an open debate on these matters would be preferable to a rushed diktat from the President’s pen, unreviewed by the Justice Department lawyers generally entrusted with reviewing such orders, and interpreted by partisan hacks like Steve Bannon and Stephen Miller to snare green card holders in its net, over the objections of the Department of Homeland Security. That way of proceeding is chaotic by design, and erodes the respect for the administration held by sentient portions of the citizenry, as well as federal judges who will be asked to rule on such matters.

Also worth reading is Rep. Amash’s Facebook post on the legalities of the President’s order. I won’t quote the whole thing, but here is a relevant excerpt.

It’s not lawful to ban immigrants because of “nationality, place of birth, or place of residence.” This nondiscrimination provision comes from a 1965 law (8 U.S.C. 1152 Sec. 202(a)(1)(A)) that limits the 1952 law (8 U.S.C. 1182 Sec. 212(f)) that the president cites.

It’s lawful to ban nonimmigrants for almost any reason. These are people who are temporarily visiting the United States, like tourists or students.

It’s lawful to ban refugees for almost any reason. But banning all refugees from particular countries is harsh and unwise. We still should admit well-vetted persons.

Understanding these distinctions is important because supporters of President Trump’s executive order continue to wrongly insist that the order is lawful and that President Obama did almost the same thing in 2011. And opponents of President Trump’s executive order continue to wrongly insist that banning refugees violates the Constitution or the law.

I have been writing extensively on the legality of the President’s order, here and here, and I appreciate Rep. Amash weighing in on these matters in such a clear and courageous style. So much unexamined partisan nonsense — including the meme that Obama did exactly the same thing in 2011 — has clouded the issues on this topic that it’s refreshing to see someone bucking the rubber-stamping consensus emerging on the right.

In that vein, I want to extend a personal thanks to Rep. Amash for linking one of my posts on the topic on his Facebook page. I have been a fan of his for years, and indeed, my initial post on the legality of President Trump’s order referenced Rep. Amash. In that post, I said that if the order is illegal, “it should be condemned by anyone in Congress who still cares about limiting executive overreach. That group includes Senator Mike Lee, Representative Justin Amash, and — for the next four years — Democrats.” It’s a treat to see someone you admire sharing your work with others, and I thank Rep. Amash for doing so.

[Cross-posted at RedState.]

73 Comments »

  1. I’m really not seeing that Justin Amash has gone into the same level of detail as, for example, SWC has. He doesn’t mention the 2015 law at all–which he appears to have voted for. While he may examined and consider that he hasn’t said it here.

    It can’t be stated strongly enough that capitalism creates prosperity and improves assimilation into society.

    It sure does, but there a lot of people in this world who don’t care that much about prosperity as we understand it, and for whom assimilation is something we ought to do for them, and they are awfully hard to tell from the other sort. And sometimes they come here, and they, or their children, become the other sort, despite all that capitalism did for them.

    Comment by Gabriel Hanna — 1/30/2017 @ 10:44 am

  2. In 1986, Congress passed a Visa Waiver Program that eliminated the requirement of business and tourist visas for travelers from specific countries:

    What is the Visa Waiver Program (VWP)?

    The VWP permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa.

    The 2015 Act amended the 1986 Act as follows:

    DHS remains concerned about the risks posed by the situation in Syria and Iraq, where instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups.

    The U.S. Congress shares this concern, and on December 18, 2015, the President signed into law the Consolidated Appropriations Act 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). The Act, among other things, establishes new eligibility requirements for travel under the VWP. These new eligibility requirements do not bar travel to the United States. Instead, a traveler who does not meet the requirements must obtain a visa for travel to the United States, which generally includes an in-person interview at a U.S. Embassy or Consulate.

    Note that there is a difference between immigrants (which is what the 1965 Act applies to, that prohibits discrimination based on country/national origin) and visitors (which is what the 2015 Act addresses). The 2015 Act does not ban travelers and it does not even apply to immigrants. It’s only relevance is that the Trump EO used it to identify the countries that are of heightened concern because of terrorism.

    Comment by DRJ — 1/30/2017 @ 11:14 am

  3. Rep Amash didn’t mention the 2015 Act because it has nothing to do with immigrants or refugees, which is what Trump’s EO is about. The 2015 Act only applies to business and tourist visas.

    Comment by DRJ — 1/30/2017 @ 11:30 am

  4. There is a reasonable concern about people who come from places that harbor terrorists. That is why Congress passed the 2015 Act, so we could better control who visits from those countries. Congress should do the same thing with respect to immigrants and refugees. I don’t think any President has the authority.

    Comment by DRJ — 1/30/2017 @ 11:36 am

  5. @DRJ: that prohibits discrimination based on country/national origin

    I suppose I am not seeing how it could have done so. Because 8 USC Section 1182(f), which is not (unlike other sections, marked as repealed) says:

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    Barack Obama invoked this section in 2011. So it seems to have been in force past 1965.

    Comment by Gabriel Hanna — 1/30/2017 @ 11:40 am

  6. Not a conservative here, but Rep. Amash is my congressman out here in Battle Creek. He’s incredibly responsive to his constituents and uses social media very well to that end, explaining every one of his votes. He’s one of the only Republicans I’ve ever voted for, and it was because he is principled, responsive, consistent, and transparent, which makes him trustworthy.

    Comment by Tom Ryberg — 1/30/2017 @ 11:47 am

  7. > it was because he is principled, responsive, consistent, and transparent, which makes him trustworthy.

    How do we get more of that from politicians of both parties?

    Comment by aphrael — 1/30/2017 @ 11:52 am

  8. @Tom Ryberg: Yeah, Amash is a great guy overall.

    @aphrael: We need to have an electorate that desires such people.

    Comment by Gabriel Hanna — 1/30/2017 @ 11:56 am

  9. I’m really not seeing that Justin Amash has gone into the same level of detail as, for example, SWC has. He doesn’t mention the 2015 law at all–which he appears to have voted for. While he may examined and consider that he hasn’t said it here.

    As best as I can tell, the 2015 law is a red herring. I have asked anyone who will listen to explain to me what in that law justifies what Trump has done, and nobody has made as serious attempt that I have seen. The law says certain countries including ones designated by the President are ineligible for a visa waiver program. That is different from what Trump has done. If you have an explanation of how that law somehow authorizes Trump’s order I would love to see the argument.

    For what it’s worth, Andrew McCarthy suggests that he might respond to my post today briefly. Maybe he can shed some light on what the argument is.

    Comment by Patterico — 1/30/2017 @ 12:16 pm

  10. Barack Obama invoked this section in 2011. So it seems to have been in force past 1965.

    The 1965 amendments do not affect refugees and that is all Obama did in 2011, as far as I can tell: delay processing of refugee applications. So Obama’s actions in 2011 seem to be another red herring.

    Comment by Patterico — 1/30/2017 @ 12:18 pm

  11. My earlier comment addressed the relevance of the 2015 Act. I don’t think that law applies to this EO except insofar as it lists countries of heightened terrorism concern.

    8 USC 1182 is a different law that has been amended several times, including in 1965 in the Hart-Celler Act that removed national origin as a basis to discriminate in immigration. 8 USC 1182(f) provides:

    (f) Suspension of entry or imposition of restrictions by President
    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

    I don’t know how this provision affects the prohibition on discrimination based on national origin BUT 8 USC 1182(f) applies to “aliens or classes of aliens.” That may be more limited than the entire country of aliens.

    Comment by DRJ — 1/30/2017 @ 12:19 pm

  12. I agree with DRJ’s comments to the effect that the 2015 law has nothing to do with the EO except to the extent that it provides a list of countries that are referred to in that EO. The law does not provide authority for what Trump did, as far as I can tell — at least nobody has been able to explain to me how it does.

    Comment by Patterico — 1/30/2017 @ 12:30 pm

  13. For instance, Obama’s 2011 EO prohibited entry for the class of aliens defined as:

    IMMIGRANTS AND NONIMMIGRANTS OF PERSONS WHO PARTICIPATE IN SERIOUS HUMAN RIGHTS AND HUMANITARIAN LAW VIOLATIONS AND OTHER ABUSES

    Obama did not suspend entry for all people from specific countries, only for a certain class of people more commonly found in those countries. He threaded the needle in a way Trump failed to do.

    Comment by DRJ — 1/30/2017 @ 12:33 pm

  14. Actually, Obama entered a Proclamation not an EO, which is what 8 USC 1182(f) provides. It pays to have lawyers look at things before Presidents do them.

    Comment by DRJ — 1/30/2017 @ 12:37 pm

  15. Wikipedia has a helpful history of US immigration laws, beginning with “Article I, section 8, clause 4 of the Constitution expressly giv[ing] the United States Congress the power to establish a uniform rule of naturalization.” I can’t vouch for everything WIKI says but I can vouch for that sentence.

    Comment by DRJ — 1/30/2017 @ 12:44 pm

  16. @Patterico:I have asked anyone who will listen to explain to me what in that law justifies what Trump has done, and nobody has made as serious attempt that I have seen. The law says certain countries including ones designated by the President are ineligible for a visa waiver program.

    I suppose the connection is that since the list in the 2015 law is essentially countries that have inadequate documentation for the level of threat some of their residents have posed, then Trump’s EO restrictions are not based on nationality directly, but based on the same basis the 2015 law is on.

    After all, why not just list the countries in the EO? But he incorporated them by reference instead. And that list is dynamic, it is up to the Secretaries of State and Homeland Security what nations appear on it.

    I don’t know the law well enough to know if that works.

    @DRJ:1182(f) applies to “aliens or classes of aliens.”

    But it has the modifier “any”. ANY class of alien. Not “any class except”.

    The 1965 law lists specific sections to amend and then amends them. I did not find that it listed 1182(f).

    Comment by Gabriel Hanna — 1/30/2017 @ 12:45 pm

  17. @DRJ:“Article I, section 8, clause 4 of the Constitution expressly giv[ing] the United States Congress the power to establish a uniform rule of naturalization.”

    But there is nothing that prevents Congress from delegating that rule to the executive. Maybe the Constitution should have such a provision.

    Comment by Gabriel Hanna — 1/30/2017 @ 12:46 pm

  18. Showing a connection between the words used is different than showing legal authority for actions. The 2015 Act doesn’t give Trump authority to do what he did. 8 USC 1182(f) might, but only if “aliens or classes of aliens” can be defined as “all aliens from a specific nation.” I don’t think it can.

    Comment by DRJ — 1/30/2017 @ 12:53 pm

  19. The Non-Delegation Doctrine is rarely mentioned but it does exist.

    Comment by DRJ — 1/30/2017 @ 12:56 pm

  20. In 2002 Bush invoked 1182(f) to empower Homeland Security to hold, screen, and return if necessary any undocumented aliens in “the Caribbean region” and it also contains some other provisions in the event of a “mass migration”.

    Now it doesn’t come out and say where exactly the Caribbean region is or what counts as a mass migration. But he’s certainly used that section to single out aliens in a geographic area and institute special rules to deal with them.

    I don’t know the laws well enough to know if this is an analogous case.

    Comment by Gabriel Hanna — 1/30/2017 @ 12:58 pm

  21. Let me amend what I said earlier:

    8 USC 1182(f) might, but only if “aliens or classes of aliens” can be defined as “all aliens from a specific nation.” I don’t think it can.

    Comment by DRJ — 1/30/2017 @ 12:53 pm

    Those words can mean “all aliens from a specific nation” but then that provision would conflict with the section from the same law that prohibits discrimination based on national origin. As a result, courts would look for a way to harmonise the provisions.

    It is possible to respect the prohibition on discrimination and give meaning to this phrase if we define “aliens and classes of aliens” as “individual aliens and aliens with common characteristics other than national origin.” I think that is how a court would construe this, and I think it’s how Obama’s lawyers construed it in his 2011 Proclamation.

    Comment by DRJ — 1/30/2017 @ 1:06 pm

  22. @DRJ: only if “aliens or classes of aliens” can be defined as “all aliens from a specific nation.” I don’t think it can.

    It’s easier if you restore the language “any”: “any aliens or of any class of aliens” is the language. “Any” would seem to require exceptions be listed.

    Just like if you said “Any employee can use the break room”, people would not understand that to exclude, say, exempt employees. Or if you were selling cars offering a discount on “any Toyota”, no one would understand that you meant to exclude Corollas unless you listed that exception.

    Comment by Gabriel Hanna — 1/30/2017 @ 1:09 pm

  23. The key is to define the common characteristics in a way that provides adequate guidance for border enforcement, but without running afoul of the rules that prohibit discrimination based on national origin, etc. “Caribbean region” might be an example of that because it is a region, not a nation.

    Comment by DRJ — 1/30/2017 @ 1:10 pm

  24. The point is to harmonize the law’s provisions, not rewrite them. Congress writes the laws and courts can only interpret them, not rewrite them. Courts try to give meaning to all the provisions on the theory that if Congress left the wording in, it wanted the words to mean something.

    Comment by DRJ — 1/30/2017 @ 1:12 pm

  25. @DRJ:Those words can mean “all aliens from a specific nation” but then that provision would conflict with the section from the same law that prohibits discrimination based on national origin. As a result, courts would look for a way to harmonise the provisions.

    That’s the hard part isn’t it. A court hasn’t yet done that. And the 1965 law that amended this law did not list this section (that I found) as one of the amended parts.

    So it’s a difficult question.

    I am open to the idea that this will in time be found to be an illegal order, and won’t cry too much if it was. But it’s definitely not an open-and-shut case.

    we define “aliens and classes of aliens” as “individual aliens and aliens with common characteristics other than national origin.”

    And I think a case could be made that incorporating the list by reference to the 2015 law was a way of doing that. Or one could go the Bush route and say “the Middle East region”, perhaps? But I don’t know enough to say.

    Comment by Gabriel Hanna — 1/30/2017 @ 1:13 pm

  26. Trumps EO applies to all people coming from particular countries, not any or some. Right?

    Comment by DRJ — 1/30/2017 @ 1:14 pm

  27. It is difficult and I agree we don’t know, but I think it is more likely it is illegal. It’s up to Congress to change the law if it wants to ban immigration from specific countries. I have no problem with that happening but I want it to be Congress that debates and decides.

    Comment by DRJ — 1/30/2017 @ 1:16 pm

  28. @DRJ:Trumps EO applies to all people coming from particular countries, not any or some. Right?

    A sign says “20% off on any model of Toyota”. Would you understand “any” to mean that only some of the Toyota models are discounted?

    Would you understand “any” to mean that, of a given model (say Corollas), not every Corolla is discounted?

    To me, the use of “any” in both cases means that all Toyotas are on discount, regardless of model, and that all cars of any model are on discount. If I were told that some were excluded I would need to be shown the list.

    Maybe there is some formal technical definition of “any” to be used in this instance that I am not familiar with.

    Comment by Gabriel Hanna — 1/30/2017 @ 1:19 pm

  29. @DRJ:I want it to be Congress that debates and decides.

    You and me both, madam. The last thirty years has seen them abandoning their responsibilities to the executive. It seems they like the perks of power but not the work or the substance.

    Comment by Gabriel Hanna — 1/30/2017 @ 1:20 pm

  30. I’m confused about the importance of the word “any.” I was discussing general rules of court interpretation and providing similar examples, but I don’t think they are relevant here. Is it in Trump’s Order and I’m missing it?

    By the way, I wonder if Trump’s temporary ban on all refugees might be legal. It’s bans from specific nations that seems to be the problem, not that.

    Comment by DRJ — 1/30/2017 @ 1:26 pm

  31. Andrew McCarthy published a column on the order today but it does not address my arguments. I hope he gets to them at some point in the next few days. I would be interested in his take and I respect him, although my approach tends to be more libertarian in general than his.

    Comment by Patterico — 1/30/2017 @ 1:29 pm

  32. @DRJ:I’m confused about the importance of the word “any.”

    Because 8 USC 1182(f) says the President can forbid “Any class of aliens”. That’s the law that Congress wrote.

    Trump’s order invokes that provision explicitly.

    So if “any” really means “any” then he has been given that power by Congress. If “any” is somehow modified by some part of the 1965 act that does not reference 1182(f) explicitly, than “any” might really mean “any except a list of classes not spelled out here that has to be discovered by reading a whole bunch of other laws.”

    Comment by Gabriel Hanna — 1/30/2017 @ 1:31 pm

  33. As to your question, I think “any model of Toyota” would include all Toyotas. But the comparison is “any alien from Country A” and that violates the national origin rule. If the only way to define the alien is by their country of origin, that’s a problem.

    Comment by DRJ — 1/30/2017 @ 1:32 pm

  34. Ok, I see. That’s for pointing that out. To me, the important word is class, not any. How do you define the class of aliens? If you do it based on national origin, you have a problem.

    Comment by DRJ — 1/30/2017 @ 1:34 pm

  35. Courts often read a bunch of laws in cases like this, but this is easy compared to tax cases!

    Comment by DRJ — 1/30/2017 @ 1:36 pm

  36. @DRJ:If the only way to define the alien is by their country of origin, that’s a problem.

    Right, in that a court would have to decide how the 1965 act affects 1182 (f), since the 1965 act doesn’t reference it.

    But you could define a class of alien as, say, “all aliens affected by Rule 42.” And then you have to look up Rule 42, and Rule 42 might say “Aliens arriving from Francophone nations will be served complimentary crepes Suzette” or some such.

    Rule 42 might say a lot of things. It might leave discretion to the executive as to who qualifies.

    Comment by Gabriel Hanna — 1/30/2017 @ 3:16 pm

  37. Gabriel, I’m sure you know this but to clarify it for people who may not, the immigration laws for our country are set forth in Title 8 of the United States Code beginning at Section 1101. The citation for those laws is 8 USC 1101 et seq. When Congress passes laws like the 1965 Immigration Act, those laws are written to mesh with the existing numbered laws in the United States Code. So when you read the sections in Title 8 of the U.S. Code, you are reading the immigration laws as amended by past laws like the 1965 Act.

    Comment by DRJ — 1/30/2017 @ 3:42 pm

  38. And it is absolutely true that you may have to read other laws if they are referenced in a specific Code section.

    Comment by DRJ — 1/30/2017 @ 3:44 pm

  39. CSpan 1 and 2 are showing the Democrats with Muslims speaking out against Trump, the wall, and the ban. This is a gift to the Democrats.

    Comment by DRJ — 1/30/2017 @ 3:46 pm

  40. @DRJ: So when you read the sections in Title 8 of the U.S. Code, you are reading the immigration laws as amended by past laws like the 1965 Act.

    Right, this is how I could see what the law says right now, since all the amendments have been applied to it at different times and some amendments repealed other amendments.

    And it is absolutely true that you may have to read other laws if they are referenced in a specific Code section

    Yep. In the case of 8 USC 1182(f) (“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary…”, etc) it does not reference anything else, and the 1965 amendment did not reference that section explicitly (that I found).

    This is a gift to the Democrats.

    The 33% who oppose the ban are probably already Democrats. The 57% who are for it probably less so.

    Comment by Gabriel Hanna — 1/30/2017 @ 4:02 pm

  41. CSpan 1 and 2 are showing the Democrats with Muslims speaking out against Trump, the wall, and the ban. This is a gift to the Democrats.

    Comment by DRJ

    Indeed. Thank you for the discussion of the law. Yours and Patterico’s explanation of the various defenses of the EO have been informative to me, particularly with regard to the ‘Obama did it in 2011′ or the relevance of the 2015 law.

    We’ve seen what’s happened to Europe and the government’s interest in immigration reforms to prevent that happening here is the right thing to do. I’m glad Trump is not curtailed by political correctness as he pursues that goal, though I believe he actually seeks the outrage as a tactic, much as Obama occasionally did.

    My dad came to this country from Iran in the 1960s before becoming naturalized, so I’ve had my own perspective on those saying it would be better for these folks not to come here, not have kids here, and somehow this makes us a safer nation.

    Bot attitudes, the one that saw Europe flooded with folks who refuse to assimilate, and those who want no Muslims in our country, are the result of putting politics ahead of common sense. Similarly, executive orders to change immigration ‘law’ such as the word law even applies these days, is foolish. By working through congress, Obama or Trump could have negotiated a reform or policy that was lasting because it was deliberated and negotiated. But to do that, you have to give up some control.

    Fortunately, it does not take a president to pass a law. I very much hope that Congress does pass a law regarding immigration from middle eastern countries (and others) to manage the process so that those who actually seek to be free Americans, and contribute to our society, can do so, making all Americans better off, while those who do not have this desire, are not permitted entry. They can then put that on Trump’s desk and I bet he would sign it.

    Comment by Dustin — 1/30/2017 @ 4:46 pm

  42. I was wondering if my vote against Trump was a mistake, but now I’m sure I won’t consider voting for him against any democrat, because to me this is deeper than a binary choice. It’s about defining the conservative movement. Denying green card holding Iranians their rights, on the basis of nationality, is not what I want my country to be like. It is another example of security theater, and once again the price is paid by the good guys. The bad guys would have no trouble getting onto our shores while that engineering student who wanted to visit his mom is thwarted (and the notion that America is the enemy of the middle eastern guy is reinforced).

    I say that even though I find the crisis in Europe to be a clear demand for immigration controls. Sensible ones that are realistically tuned to a goal rather than a headline, at least.

    Comment by Dustin — 1/30/2017 @ 4:50 pm

  43. > Denying green card holding Iranians their rights, on the basis of nationality, is not what I want my country to be like.

    The thing that infuriates me the most about that is that (a) as applied to green-card holders, the EO violates due process, and (b) it would have been *trivially easy* to write the EO in a way that excluded them.

    So how do i avoid the conclusion that either (a) the part of the administration responsible for the EO doesn’t know what the requirements of procedural due process are and who is covered by them, or (b) the part of the administration responsible for the EO *doesn’t care*?

    Comment by aphrael — 1/30/2017 @ 5:01 pm

  44. Dustin, I remember meeting some Iranian immigrants in the 60’s in Lubbock. Good folks. Did your Dad come straight to Texas from Iran?

    Comment by DRJ — 1/30/2017 @ 5:28 pm

  45. The classes should be rational. Next to “that class of aliens coming from a country with an outbreak of epidemic proportions of a deadly contagious disease”, is there a more rational class than “that class of aliens coming from a country where law and order and the machinery of government have broken down and terrorist groups operate and train, and it is impossible for the United States to know whether this alien is coming to the United States for the purpose of committing acts of terrorism”? And isn’t it further rational to tell your border control people which country or countries those are?

    Comment by nk — 1/30/2017 @ 5:29 pm

  46. Ok, in deference to Dustin, I will add a second class. “That class of aliens coming from a country whose government advocates terrorism against the United States, and sponsors, funds and trains terrorists.”

    Comment by nk — 1/30/2017 @ 5:33 pm

  47. Denying green card holding Iranians their rights, on the basis of nationality, is not what I want my country to be like.

    If they aren’t going to entertain regime change, Iran’s neighbours (and the West generally) will be a haven for people fleeing the Islamic Republic for one reason or another.

    On a somewhat related note, there are other material reasons for doubting the wisdom of this/these travel ban(s).

    Comment by JP — 1/30/2017 @ 5:47 pm

  48. Dustin,

    I have argued forever that the Iranian people are by and large lovers of freedom and even of America. I read a piece a long time ago that made a case to that effect, and everyone I have ever met here of Iranian background seems to confirm my opinion. Am I right about that, in your opinion?

    Don’t get me wrong: there are certainly “Death to America” types there. But it’s my view that they are a minority.

    For example, Iranians in Tehran demonstrated on behalf of the victims of 9/11:

    Anonym_Iran: On 2001/09/11, thousands and thousands Iranians went instantly in the streets with candles in homage to the victims.

    Meanwhile Muslims in many other countries were handing out candy and such.

    Here’s a comment of mine from 2006 (over ten years ago!):

    Harkin misses that the Iranian people have been big supporters of America[] for quite some time. It’s just their government that hasn’t been.

    Do you think I have this right, or am I being naive?

    Comment by Patterico — 1/30/2017 @ 5:53 pm

  49. Would “any class” include all persons between the ages of, say, 16-54? Let’s say the exact numbers are drawn from the typical age ranges of terrorists, suicide bombers, and the like? Would that passs muster? Would that be a “reasonable” enough category to survive being stayed for the 90 days? I can already see Trump’s lawyers arguing it’s humanitarian in nature, on account of, you know, the children and the elderly.

    Comment by Quibus Vigilius — 1/30/2017 @ 6:01 pm

  50. We (my family) also have close family friends from Iran whose kids have sat on my lap and called me “Uncle”. I know they are not in Qods or Hezbollah, but that does not change the reality of the mullahs.

    Neither am I offended that my Greek relatives need a visa to come to the United States, when the rest of the EU does not, because Greek identification documents are not trustworthy.

    Comment by nk — 1/30/2017 @ 6:10 pm

  51. I don’t think this is so clear that the DOJ should refuse to defend it in court, but apparently that’s what the acting head has decided to do.

    Comment by DRJ — 1/30/2017 @ 6:11 pm

  52. I don’t know, Quibus. Interesting idea.

    Comment by DRJ — 1/30/2017 @ 6:13 pm

  53. Is it possible that Trump wanted this to happen so his Cabinet appointments would get confirmed quickly? After all, won’t the left and the right agree that Trump needs more adults in place to avoid future incidents like this?

    Comment by DRJ — 1/30/2017 @ 6:17 pm

  54. There’s a new acting Attorney General. That takes care of that.

    Comment by Patterico — 1/30/2017 @ 6:20 pm

  55. He fired her already? I was checking Google News just fifteen minutes ago.

    Comment by nk — 1/30/2017 @ 6:24 pm

  56. I see it. Spicer tweeted it ten minutes ago. Twitter!

    Comment by nk — 1/30/2017 @ 6:26 pm

  57. Good. She shouldn’t have done that. Plus, admit it, who doesn’t want to see Trump fire someone.

    Comment by DRJ — 1/30/2017 @ 6:28 pm

  58. Yep, Yates is out.

    Comment by Dana — 1/30/2017 @ 6:30 pm

  59. The President just sent a message to Putin and China that’s loud and clear.

    Comment by DCSCA — 1/30/2017 @ 6:33 pm

  60. Getting serious:

    The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

    Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

    It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.

    Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.

    “I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.

    Comment by Dana — 1/30/2017 @ 6:34 pm

  61. According to the reporting I’ve seen, a FISA warrant must be signed off on by a Senate-confirmed official in the DOJ, and Yates was the last one. If that’s correct, there can legally be no FISA warrants until Sessions (or some other Senate-confirmable official in the DOJ) is confirmed.

    If *that’s* true, then this implies that the administration thinks that the DOJ defending the EO is *more important* than FISA warrants are — or that they are unaware of this rule and unwilling to find out before acting.

    Comment by aphrael — 1/30/2017 @ 6:36 pm

  62. Blog post about to go up.

    Comment by Patterico — 1/30/2017 @ 6:45 pm

  63. “betrayed the Department of Justice”? that seems outlandishly harsh.

    “an Obama Administration appointee who is weak on borders and very weak on illegal immigration”? that’s possibly true, but it seems quite childish for an official statement to *say* that.

    Comment by aphrael — 1/30/2017 @ 6:49 pm

  64. Gabriel at 40:

    Yep, when the Dems see the 57-33 number tomorrow in terms of public opinion on the EO, their cries of outrage will suddenly quiet down dramatically.

    Comment by shipwreckedcrew — 1/30/2017 @ 6:58 pm

  65. > it was because he is principled, responsive, consistent, and transparent, which makes him trustworthy.

    Comment by aphrael — 1/30/2017 @ 11:52 am

    How do we get more of that from politicians of both parties?

    Weaken the political parties, and raise the limits for individual political contributions.

    The limits for PACs and political parties are mch higher.

    It would help also to give 100% refundable tax credits for campaign contribitions up to acertain amount.

    Comment by Sammy Finkelman — 1/31/2017 @ 2:33 am

  66. 15. Comment by DRJ — 1/30/2017 @ 12:44 pm

    Wikipedia has a helpful history of US immigration laws, beginning with “Article I, section 8, clause 4 of the Constitution expressly giv[ing] the United States Congress the power to establish a uniform rule of naturalization.” I can’t vouch for everything WIKI says but I can vouch for that sentence.

    That’s right.

    Neither Wikipedia or anybody else has explained has “naturalization” was interpreted to mean “immigration” but that doesn’t seem to have happened before the 1870s. I think you will find that the “The Know-Nothing” party of the 1850s never called for a federal anti-immigration law.

    Their platform was confined to the subject of naturalization, where they wanted to impose a 21-year waiting period. (some wanted 15 years) They also wanted exclusion of non-citizens from all national, state, county and municipal offices.

    The court decisions I read, including Gibbons v. Ogden (9 Wheat. 1, 1824) seem to relate any power of the federal government regarding immigration to the power to regulate foreign commerce, but that would not apply to internal enforcement, nor grant any power to deport people once they are here.

    The “Emperor” truly has no clothes.

    Comment by Sammy Finkelman — 1/31/2017 @ 2:52 am

  67. States used to exclude people from residence.

    For instance many states, such as Ohio, excluded or restricting the immigraton of “Free Negroes” (who were not considered citizens in many places even before the Dred Scott decisions)

    U.S. Citizens could not be denied the right to moSe into a state, because of Article IV, Section 2, clause 1, of the United States constitution:

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    Although in 1941, in Edwards v. California
    314 U.S. 160 (1941), which concerned a California immigation law against “Okies”, and made it a misdemeanor for anyone knowingly to bring or assist in bringing into the State a nonresident “indigent person” the Supreme Court relied on the interstate commerce clauas, with 4 justices (Black, Douglas, Murphy and Jackson)citing instead or in addition the privileges and immunities clause of the 14th amendment.

    These pre-Civil war state laws often were not enforced, and when they were, according to one source, they tended to drive away “the sober, honest, industrious, and useful portion of the colored population” (“Cincinnati Gazette,” Aug. 17, 1829.)

    http://slavenorth.com/ohio.htm

    Comment by Sammy Finkelman — 1/31/2017 @ 3:13 am

  68. Do you think I have this right, or am I being naive?

    Comment by Patterico — 1/30/2017

    By and large, I believe you are right. But I also think the post 9/11 era has seen polarization and paranoia in Iran. Traffic jams in Tehran are blamed on the CIA (not exaggerating).

    There are a lot of Iranians who envy America and believe in a constitutional republic, and loathe democracy. There are people who believe this so much they were happy when the shah ordered police to forcibly remove chadors (those colorful head coverings Shiites sometimes wear).

    I think we missed an opportunity early in the Obama administration to show that we stand with the Iranian people, but against Islamofascism. That this is not a distinction a lot of people can make is a shame on our education system.

    But Trump’s actions are more extreme than seems sensible, and usually when he does that it’s because he is making a headfake stunt for some reason. Whatever little political purpose this serves is going to come at a high cost for the GOP and our nation’s potential friendships.

    Comment by Dustin — 1/31/2017 @ 6:22 am

  69. And I apologize for the long delay. I work night shift and don’t touch this blog at work. Wish I had time to do that like I did in my old job.

    Comment by Dustin — 1/31/2017 @ 6:22 am

  70. Dustin, I remember meeting some Iranian immigrants in the 60’s in Lubbock. Good folks. Did your Dad come straight to Texas from Iran?

    Comment by DRJ

    Kansas actually. He watched Little House on the Prairie in Iran and he thought the plains life was where it was at. That’s where he met my mother. But his educational needs quickly took him to Texas, God Bless Texas which gave him the opportunity to work very hard and have a great career that helped a lot of Texans. My dad is the hardest working man I’ve ever met. I’m a full foot taller than him simply because the quality of my diet was that much better than his growing up.

    Comment by Dustin — 1/31/2017 @ 6:25 am

  71. Traffic jams in Tehran are blamed on the CIA (not exaggerating).

    Not the only thing some Iranians blame shadowy foreign powers for.

    Though to be fair, while News of the World-type nonsense is pretty common everywhere, Iran hasn’t exactly cornered the market. Conspiracy theory seems to hold more political currency in much of the Middle East.

    Comment by JP — 1/31/2017 @ 10:08 am

  72. In 1981, Reagan took similar action that was designed to restrict immigration from Haiti, but his attorneys were smart enough not to name Haiti in the proclamation.

    Comment by DRJ — 1/31/2017 @ 11:05 am

  73. I don’t believe the OLC vetted this Order. They know this stuff. It must have been someone else.

    Comment by DRJ — 1/31/2017 @ 11:06 am

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