The Jury Talks Back

6/26/2018

Supreme Court Upholds Travel Ban 5-4

Filed under: Uncategorized — Patterico @ 7:19 am

The opinion is here.

Analysis as I can manage it.

UPDATE: I went straight to the language analyzing what I have discussed here at length: the interplay between 1182 and 1152. Here is the relevant part of the Court’s analysis:

Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility — to which § 1152(a)(1)(A) does not apply — and visa issuance — to which it does — is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in § 1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

In all the debates over this, I don’t remember anyone making this point, which the Court makes clearly and succinctly, in quite this way. If someone made this simple point, either it was not made clearly, it was buried inside a mass of bad arguments, or (this is possible) I just missed it. (I’d have to be shown clear evidence of that, with a link and a quote, before I believe it.) I don’t understand the nuts and bolts of how immigrants actually enter the country and never pretended to; I deferred to people with greater expertise than I had. And based on the arguments I saw, I always operated under the assumption — which was obviously incorrect — that visa issuance was central to the initial admission of immigrants (i.e. how can they get in without a visa?). Thus, I believed, the two provisions operated in the same sphere. (Recall that I said, over and over, that I am not an immigration law expert and my opinion on the statutory construction could be wrong.) If the two operated in the same sphere, it would be clear that Congress had limited the President’s authority under 1182. Since, as the Court explains today, they operate in different spheres, Congress didn’t.

Breezing through the dissent, I don’t see any significant argument against the Court’s position in this area. (Again, I could be missing it.) I assume it’s right.

That’s good. All I was ever concerned about was the President usurping the authority of Congress. It appears he didn’t. In that case, I revert to what was always my support for the executive order on policy grounds — that support no longer being undermined by concern that it is a power grab from Congress.

UPDATE x2: A quick glance suggests the reasoning behind the rejection of all Trump’s bigoted anti-Muslim statements as a basis to strike down the ban: “we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” That makes perfect sense, and once you realize that is the standard, the answer is clear.

Looks like a good decision at first glance — but again, I have had time only for a glance.

UPDATE x3: This interesting dictum, announced with a flourish, will get some attention once the experts have told the reporters about it:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -— to be clear -— “has no place in law under the Constitution.” 323 U.S., at 248 (Jackson, J., dissenting).

Golf clap. As Dan Rather would say: “Courage!”

Prediction: you’ll probably see a debate about whether Korematsu has been “overruled,” with clueless reporters saying it has been, and other people correcting them. (As far as I can tell, it has not been overruled, but I have not had a chance to read the whole opinion so I will refrain from making a pronouncement.)

UPDATE x4: My memory in UPDATE number one may not have been entirely accurate. I was far more steeped in all this at the time and probably should not be writing about this in a hurry. Take literally everything I say in this hastily constructed post with bushfuls of salt. A quick glance (again, glances are all I have time for this morning) at old posts suggests that the distinction between entry and visa did come up, and I quoted one of the experts as making this response, which made sense to me at the time:

Here’s the Goverment’s initial argument on that issue:

Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “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.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

I thought Bier disposed of that pretty well in his original op-ed:

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.

As far as the two statutes being “entirely different” acts, I think the point I made in an update to this post and fleshed out in this post has never been rebutted to my satisfaction. Namely:

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 makes sense to me again, as a non-expert. This is why I thought the two were related. I now officially throw up my hands in confusion.

Again: what I say in haste this morning should not be viewed as anything but the opening of a discussion. I don’t have the luxury of reading the whole opinion, going back and looking at my old posts, and coming to a considered decision in this morning post. I have to go to work — right now.

16 Comments »

  1. UPDATE: I went straight to the language analyzing what I have discussed here at length: the interplay between 1182 and 1152. Here is the relevant part of the Court’s analysis:

    Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility — to which § 1152(a)(1)(A) does not apply — and visa issuance — to which it does — is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in § 1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

    In all the debates over this, I don’t remember anyone making this point, which the Court makes clearly and succinctly, in quite this way. If someone made this simple point, either it was not made clearly, it was buried inside a mass of bad arguments, or (this is possible) I just missed it. (I’d have to be shown clear evidence of that, with a link and a quote, before I believe it.) I don’t understand the nuts and bolts of how immigrants actually enter the country and never pretended to; I deferred to people with greater expertise than I had. And based on the arguments I saw, I always operated under the assumption — which was obviously incorrect — that visa issuance was central to the initial admission of immigrants (i.e. how can they get in without a visa?). Thus, I believed, the two provisions operated in the same sphere. (Recall that I said, over and over, that I am not an immigration law expert and my opinion on the statutory construction could be wrong.) If the two operated in the same sphere, it would be clear that Congress had limited the President’s authority under 1182. Since, as the Court explains today, they operate in different spheres, Congress didn’t.

    Breezing through the dissent, I don’t see any significant argument against the Court’s position in this area. (Again, I could be missing it.) I assume it’s right.

    That’s good. All I was ever concerned about was the President usurping the authority of Congress. It appears he didn’t. In that case, I revert to what was always my support for the executive order on policy grounds — that support no longer being undermined by concern that it is a power grab from Congress.

    Comment by Patterico — 6/26/2018 @ 7:44 am

  2. UPDATE x2: A quick glance suggests the reasoning behind the rejection of all Trump’s bigoted anti-Muslim statements as a basis to strike down the ban: “we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” That makes perfect sense, and once you realize that is the standard, the answer is clear.

    Looks like a good decision at first glance — but again, I have had time only for a glance.

    Comment by Patterico — 6/26/2018 @ 7:51 am

  3. UPDATE x3: This interesting dictum, announced with a flourish, will get some attention once the experts have told the reporters about it:

    The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -— to be clear -— “has no place in law under the Constitution.” 323 U.S., at 248 (Jackson, J., dissenting).

    Golf clap. As Dan Rather would say: “Courage!”

    Prediction: you’ll probably see a debate about whether Korematsu has been “overruled,” with clueless reporters saying it has been, and other people correcting them. (As far as I can tell, it has not been overruled, but I have not had a chance to read the whole opinion so I will refrain from making a pronouncement.)

    Comment by Patterico — 6/26/2018 @ 7:57 am

  4. UPDATE x4: My memory in UPDATE number one may not have been entirely accurate. I was far more steeped in all this at the time and probably should not be writing about this in a hurry. Take literally everything I say in this hastily constructed post with bushfuls of salt. A quick glance (again, glances are all I have time for this morning) at old posts suggests that the distinction between entry and visa did come up, and I quoted one of the experts as making this response, which made sense to me at the time:

    Here’s the Goverment’s initial argument on that issue:

    Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “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.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

    I thought Bier disposed of that pretty well in his original op-ed:

    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.

    As far as the two statutes being “entirely different” acts, I think the point I made in an update to this post and fleshed out in this post has never been rebutted to my satisfaction. Namely:

    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 makes sense to me again, as a non-expert. This is why I thought the two were related. I now officially throw up my hands in confusion.

    Again: what I say in haste this morning should not be viewed as anything but the opening of a discussion. I don’t have the luxury of reading the whole opinion, going back and looking at my old posts, and coming to a considered decision in this morning post. I have to go to work — right now.

    Comment by Patterico — 6/26/2018 @ 8:08 am

  5. I think we had the right idea but did not link it to the statutory provisions.

    Comment by DRJ — 6/26/2018 @ 8:31 am

  6. I thought it was a fine decision, then again I only worked in an immigration clinic for a few months, and I didn’t get into the nitti gritti of it, it addressed the underlying statutory language of the 2016 omnibus, at the outset and pg 34,

    Comment by narciso — 6/26/2018 @ 8:55 am

  7. and I had a semester of con law, Korematsu is entirely nongermain to the question,

    Comment by narciso — 6/26/2018 @ 9:14 am

  8. You see no relevance? Does the Presidential oath to support and defend the Constitution matter?

    Comment by DRJ — 6/28/2018 @ 7:39 pm

  9. What about the fact that Trump compared what he was doing to what FDR did with the Japanese?

    Comment by DRJ — 6/28/2018 @ 7:43 pm

  10. No relevance to this case,

    Comment by Narciso — 6/29/2018 @ 6:31 am

  11. One semester of ConLaw and you know all you need to know? There is no analogy, no comparison, no relevance at all.

    Comment by DRJ — 6/29/2018 @ 8:24 am

  12. I agree Korematsu is not on point. It involved interning Japanese in America, and the travel ban involves visas and entry laws. But Presidents have a duty to obey the Constitution in their policies. Targeting people based on race as FDR did and on religion, as Trump campaigned on, violates that oath. Is that a relevant comparison?

    Comment by DRJ — 6/29/2018 @ 8:59 am

  13. That’s where I learned about merryman and quit on, korematsu and hirabayashi, the internment were an overreaction, the fact that the left misanalogized them to both gitmo and now the immigration pause shoes a paucity of reasoning.

    Comment by Narciso — 6/30/2018 @ 7:05 am

  14. I also read about the truly heinous nature of dred Scott and the reconstruction era civil rights cases, as well as the resurgence of sentiment.

    Comment by Narciso — 6/30/2018 @ 7:10 am

  15. Justice Roberts called Korematsu “gravely wrong.” Does that make you wonder if what you learned in that class about Korematsu might be wrong?

    Comment by DRJ — 6/30/2018 @ 7:44 am

  16. No, he was a strong lefty but there is no equivalence between this case and korematsu

    Comment by Narciso — 7/1/2018 @ 7:53 am

RSS feed for comments on this post. TrackBack URI

Leave a comment

Comment moderation is enabled. Your comment may take some time to appear.

Live Preview


Powered by WordPress.