Patterico's Pontifications


Ninth Circuit Agrees with Patterico

Filed under: General — Patterico @ 7:03 pm

The Ninth Circuit has shot down Trump’s latest executive order on immigration. You can read the opinion here.

One fascinating aspect of the opinion is that it directly addresses a topic I have discussed at this blog at length: the non-discrimination ban of 8 U.S.C. section 1152(a) and its interplay with 8 U.S.C. section 1182(f). Consistent readers may recall that I got into an exchange with NRO’s Andrew McCarthy about this issue, and I still believe I got the better of him in the exchange. Trump’s supporters uniformly cited section 1182(f) and mocked my argument that section 1152(a) superseded it. Today, the Ninth Circuit agrees with my analysis — um, not a phrase that would normally cause me to feel much pride, by the way.

(Frankly, it’s a policy result I don’t like, and I’m sure the Ninth Circuit opinion will be derided as the work of leftist goons. However, I believe their analysis here is correct.)

The interested reader might look at the analysis on pages 48-56 of today’s opinion and compare it with my analysis, in this post and the links cited therein. I am short on time but here is one fun comparison. This is me from February 2:

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.

And today’s Ninth Circuit opinion, with my emphasis:

Second, §1152(a)(1)(A) specifically identifies exemptions from the non-discrimination mandate, implying that unmentioned sections are not exempted. See United Dominion Indus., Inc. v. United States, 532 U.S. 822, 836 (2001)(“The logic that invests the omission with significance is familiar: the mention of some implies the exclusion of others not mentioned.”). Section 1152(a)(1)(A) explicitly exempts three different INA provisions fromits application—8 U.S.C. §§1101(a)(27), 1151(b)(2)(A)(i), and 1153—all of which deal with giving preference to certain immigrants, such as family members of current citizens and permanent residents. Had Congress likewise intended to permit §1182(f) to override §1152(a)(1)(A)’s non-discrimination requirement, it would have done so in the same way it did for the other provisions.

TL;DR: It’s the same analysis in different words.

There are other similarities between my post and today’s opinion. If you were steeped in the technicalities at the time, I recommend reading today’s opinion.

[Cross=posted at The Jury Talks Back.]

Democrat Wants Congress To Investigate Whether Loretta Lynch Gave Cover To Clinton Campaign

Filed under: General — Dana @ 7:00 am

[guest post by Dana]

While it wasn’t surprising that Sen. Dianne Feinstein would “…formally ask the GOP chairman … Sen. Chuck Grassley (R-Iowa), to open an additional review of the president” about a possible obstruction of justice with regard to the Michael Flynn criminal investigation, this is indeed surprising:

Sen. Dianne Feinstein (D-Calif.) said she’s concerned by former FBI Director James Comey’s testimony Thursday that Lynch asked him to downplay his “investigation” into the Democratic presidential nominee as merely a “matter.”

Comey said the political request called into the question the credibility of Lynch’s Department of Justice and made him “queasy.”

“I would have a queasy feeling too,” Feinstein admitted Sunday on CNN’s “State of the Union.” “I think we need to know more about that. And there’s only one way to know about it and that’s to have the Judiciary Committee take a look at that.”

Lynch, a President Obama nominee, ultimately had to distance herself from the FBI probe after meeting with former President Bill Clinton on a tarmac in Phoenix during the height of the election campaign and email investigation.

Lynch said the meeting was impromptu and they didn’t discuss Clinton’s private email server, but the appearance of impropriety forced her to back off and for Comey to become the public face of the probe.

Asked whether Lynch provided improper political cover for Clinton, Feinstein said: “I can’t answer that,” but a “separate investigation” is worthwhile to find out.

(Cross-posted at The Jury Talks Back.)


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