Patterico's Pontifications


New Policy on Comments on Posts Bearing the Word “Trump”

Filed under: General — Patterico @ 11:05 pm

If the word “Trump” appears in a post, I’ll be commenting at The Jury Talks Back. I won’t be commenting here. This policy will remain in effect for the foreseeable future, until further notice.

This is for two reasons.

First, I am trying to promote commentary at The Jury Talks Back. The comments section there tends to be a little less lively than here, in part out of habit (we’re all used to commenting at the main site), and in part because I still lack a Recent Comments section there, which means it takes more effort to maintain a conversational flow. But I like the idea of the ethic at The Jury Talks Back, which is that there is a strict adherence to civil conversation. There are no personal attacks and no strawman arguments. The rule is that you behave the same way you would if I had invited you to my living room. I’d like to see more people participating there — and if the prospect of discussing the post with the blog proprietor is a plus (and hey, maybe it’s not), then I can help increase the volume of comments there.

Second, any post with the word “Trump” in it inevitably devolves at some point into personal commentary, usually accusing me of bias against Trump. Even when this sort of commentary comes from only one or two people, I find it irritating and it puts me in a bad mood. It’s pretty much impossible to defend against vague accusations like that. I keep wanting to discuss the actual issue I blogged about, but the issue gets lost when people insist on complaining about me and my views about Trump on a personal level. It’s not fun for me, and if an aspect of the blogging experience is not fun for me, then it makes me want to change it.

And for now, that means commenting at The Jury Talks Back when a post contains the word “Trump.”

People can still challenge my criticism of Trump there. They just can’t criticize me on a personal level while they do so. For now, that’s something I need. I hope readers understand.

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

Filed under: General — Patterico @ 4:00 am

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

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

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

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

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

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

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

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

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

Bier says: “Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between ‘the issuance of a visa’ and the ‘entry’ of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry.”

Bier notes that Trump relies in part on a 1952 law “that allows the president the ability to ‘suspend the entry’ of ‘any class of aliens’ that he finds are detrimental to the interest of the United States.” But, Bier argues, this provision was overruled by the later 1965 amendments present in section 1152 quoted above.

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


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