I am not a fan of President Trump’s controversial Executive Order on immigration. I think it contains good provisions, such as prioritizing the resettlement of religious-minority refugees who are at the greatest risk of being killed in their homelands, and the global visa requirements review is a fine idea. However, I considered its chaotic rollout and broad application to green card and SIV-holders extremely reckless, and I think suspending the Syrian refugee program without first establishing an alternative is unconscionable. “America First” is good insofar as it recognizes that the primary responsibility of a nation is to its citizens (not the global community), but this must not descend into an amoral realpolitik that repudiates our secondary (but nevertheless real) responsibilities to do what we can to help the world’s most vulnerable non-citizens.
However, a great many people have already weighed in on the substance of Trump’s Executive Order, and I don’t have much to add to the global conversation. On the other hand, a friend asked me the other day whether Trump’s EO is legal, and I think that that discussion has been badly neglected by almost everyone.
Those who are talking about the law are largely talking nonsense. While protesters chant that the order is “unconstitutional” simply because it “advances prejudice” (as one Facebook commenter put it to me), a surprising amount of the discussion by the Great and Wise has revolved around loose comments by private citizen Rudy Giuliani about a so-called “Muslim ban,” which critics have tried to tie to the EO and thus to the Establishment Clause. Even if they succeeded in this, it’s a thin case against the EO’s legality, since potential immigrants (who are not persons under U.S. jurisdiction) have very few constitutional rights in the first place. In light of the fact that many of President Trump’s harshest critics positively applauded President Obama’s actually unconstitutional orders on immigration and health care, one suspects there may be some motivated thinking at work here.
Right-wing defenses of the EO, by contrast, have relied (in my opinion) far too heavily on the President’s constitutional foreign-affairs power, which does give the President broad authority to act in the national interest, but with the caveat that Congress can severely limit it by statute.
Congress has done just that. The legality of the EO is not primarily a constitutional issue, but a statutory one. The best attack on the EO so far, proposed by David Bier for the New York Times and expanded on by Patterico at RedState, revolves around the statutes in question, and attacks the EO solely on the basis of those statutes. My favorite Congressman, Justin Amash, has endorsed these attacks.
However, those attacks are mistaken. Solely on the basis of the statutes in question, it is clear that the EO is perfectly legal.
Before getting started, I want to quote the start of Patterico’s article, because his disclaimer applies equally to me:
I am not an immigration lawyer [nor indeed a lawyer of any kind] 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… might be useful to people interested in the topic.
So, with my layman’s credentials established, what are the statutes in question here?
In 1952, Congress passed a law, the Immigration and Nationality Act, that contained a provision now enshrined in the US Code at 8 USC 1182(f). That provision says, in relevant part:
(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.
This is, as you can see, an extraordinarily broad grant of unilateral power to the President to suspend immigration by anyone for any reason at any time. As we’ve seen, some people contend that the President has that power anyway, under Article II, I think that’s questionable; to suspend immigration, the President should receive authorization from Congress. But Congress gave the President that power anyway, in this very provision. Was that a good idea? Debatable. In the age of Trump? Definitely not. But it’s still the law. Plenty of bad ideas are still law.
Unsurprisingly, 1182(f) is the very provision President Trump’s EO relies on for its authority. The Executive Order (full text here) specifically proclaims, in Sec. 3(c), that entry from the seven involved countries “would be detrimental to the interests of the United States” in order to meet the precise verbal requirements of this statute, and it provides an explicity citation to 1182(f).
Opponents of the EO point to a later law, the Immigration and Naturalization Act of 1965, which ended the American quota-based immigration system that was set up originally under the Chinese Exclusion Act of 1882.* The INA includes this provision, enshrined in the US Code at 8 USC 1152 (a)(1)(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.”
The argument by EO opponents is that 8 USC 1152(a)(1)(A) repealed 8 USC 1182(f) by implication, because the two laws contradict and 1152(a)(1)(A) is the newer law. The President did have the authority to “ban” aliens from certain countries from 1952 to 1965, but does no longer, because 1152(a)(1)(A) bans discrimination by nationality and residence. The EO discriminates based on both, so, despite the broad grant of authority under 1182(f), it violates 1152(a)(1)(A) and is therefore illegal.
It’s an interesting argument. But there are a whole lot of problems with it:
(1) The two laws simply don’t conflict. § 1152(a)(1)(A) deals with visa issuance. § 1182(f) deals with entry. These are separate categories. A restriction placed by Congress on visa issuance does not place restrictions on the President’s power (also granted by Congress) to suspend entry. It’s entirely reasonable that the U.S. would, under some circumstances, continue to recognize visas and process visa applications for the residents of certain countries while temporarily suspending their actual right to enter the United States.
Importantly, that’s exactly what the EO does. The EO doesn’t revoke anybody’s visa. It suspends entry for 90 days, pending a review of visa requirements and reciprocity agreements. It is not plausible to read a temporary, 90-day suspension of entry rights, with no revocation of existing visas, as discrimination “in the issuance of visas”. Even an indefinite suspension of entry would only questionably interact with 1152(a)(1)(A)… and the only indefinite suspension in the EO is the Syrian refugee program, which all agree is not even covered by 1152(a)(1)(A). EO opponents’ arguments fail primarily because they rely on a supposed conflict between two laws that do not interact at all.
(2) Even if you could plausibly read the two laws to be in conflict, the argument that 1152(a)(1)(A) implicitly repeals 1182(f), in whole or in part, is likely to run aground in court, because it is not the only possible reading of the two laws. Courts hate implied repeal, because it creates deep uncertainty in the law as a whole. You never know for sure whether a statute on the books is in force or has been repealed by implication by some later statute you haven’t seen.
The general rule in courts is that, if a legislature intended to repeal or limit a law, they’d repeal or limit the law. If both laws are still on the books–and, in this case, they are–courts will do everything they can to reconcile them, favoring a reading where they do not conflict. Implied repeal is a last-resort method used only when laws absolutely contradict… and it more often arises when some state discovers they have on the books 1796 statute banning petticoats that everyone forgot about, not so much with major and well-known provisions of the U.S. Code. So courts are going to avoid the conflicted reading between 1182(f) and 1152(a)(1)(A) if at all possible. And rightly so: verba cum effectu accipienda sunt, folks. Since avoiding the conflicted reading is possible (more than possible, actually), 1182(f) stands as written, and the EO is legal.
(3) Even if you are, for some reason, convinced that the two statutes must be read as conflicting, 1152(a)(1)(A) still can’t be read as wholly repealing 1182(f). The most you can say is that 1152(a)(1)(A) creates a limitation: it prevents the President from suspending entry for classes of aliens on the sole basis of their nationality. But the rest of 1182(f) stands, and the President retains the authority to suspend entry for classes of aliens not covered by 1152(a)(1)(A). So, even if 1152(a)(1)(A) limits 1182(f) when it comes to nationality, 1182(f) still gives the President the right to suspend entry for, say, communists, or for people who were recently exposed to ebola. (People who have ebola are already excluded under §1182(a), but 1182(f) grants the President very broad discretion to respond to evolving health crises.)
Importantly, under 1182(f), the President may suspend entry for a class of aliens even if the class of aliens happens to bear a rationally-based relation to a nation or group of nations. That’s a dense sentence, so let me illustrate with an example. Suppose there were an ebola outbreak in Madagascar. It reaches epidemic proportions in Madagascar, causing a total breakdown in the social order, including the health care and records systems. However, being an island nation, the international community is able to contain the disease enough that it spread nowhere else. The President, fearing the spread of the infection because (with Madagascar’s government in chaos) we are unable to verify whether someone is carrying or has recently been exposed to the disease, issues a blanket proclamation under 1182(f), just like the one we suggested above: no one who has recently been in an area suffering from an ebola outbreak may enter the United States. Because of the way this breakout played out, however, this ban happens to be exactly equivalent to a ban on people from Madagascar. Nevertheless, it seems clear that the President is well within his rights, under 1182(f), to enact this suspension anyway. The ebola “ban”, while accidentally corresponding with nationality, has a rational basis quite apart from nationality. If the epidemic spreads beyond Madagascar to other regions, the President’s suspension will expand accordingly; if the epidemic in Madagascar ends, the suspension will evaporate on its own. Clearly, 1182(f) permits this, and 1152(a)(1)(A) poses no obstacle. It would be a strange thing indeed if 1152(a)(1)(A) forbade us to respond to an ebola epidemic in Madagascar (because it is a country), but suddenly permitted us to respond if the epidemic shrank to just a two or three provinces of Madagascar!
By the same token, the U.S. discriminated against visa applicants from Warsaw Pact countries during the Cold War, applying additional scrutiny and screening if not outright blocking entry. This was not because the U.S. had a problem with ethnic Russians or Latvian nationals, but because the U.S. had a problem with communist espionage, which tended to originate in those territories. I am unaware of any attempt to use 1152(a)(1)(A) to prevent enhanced scrutiny in these cases, because this was not discrimination on the basis of nationality.
Likewise, Trump’s EO does not suspend entry on the basis of nationality. It has a perfectly rational basis that has nothing to do with nationality: the EO simply suspends entry from areas that have been designated by Congress and the Secretary of Homeland Security as “areas of concern” due to an elevated risk from terrorist infiltration. The current list of “areas of concern” happens to include the entirety of seven countries: Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, and so alien entry from those nations is temporarily suspended.
There is no prejudice against, say, Iraqis implied by this order. If Iraq is able to get its terrorism problem under control to the point where Congress agrees to remove them from that list, the EO will automatically cease to apply to them. If the reach of terrorist migration expands, so too will the list, and so too will the countries covered by the EO, whether that means temporarily barring aliens from Lebanon or from Canada. The terror threat the President is responding to is, legally speaking, no different from the ebola threat we considered above, and it is not a nationality.
Some have suggested this argument renders 1152(a)(1)(A) a “virtual nullity.” This is silly. 1152(a)(1)(A) was designed to bar the executive from decreeing, “The U.S. is revoking all Chinese visas, because we have too much Chinese labor, they are overwhelming our colleges with their smart kids, and their culture is too different from ours.” It has accomplished this goal. If President Trump issued an EO that said that or anything like it, it would be illegal. That this is unimaginable today is a sign of how completely 1152(a)(1)(A) and the rest of the 1965 Act has succeeded in overthrowing our old model of immigration based on racial quotas. That this law has succeeded as written, however, is not an excuse to adopt a new, radically broader meaning for it that bars the President from acting to protect the nation from actual foreign threats under 1182(f) just because those threats happen to coincide with somebody’s national borders.
The Cato Institute points at a 1995 case, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, in which the government tried to allege a rational basis for discriminating in the issuance of visas on the basis of nationality and was swatted down by the D.C. Circuit Court of Appeals. But that case is clearly distinguishable from the Trump EO: in LAVAS v. State, the government was explicitly discriminating on the basis of nationality and claimed a rational basis for doing so. In this case, the issuance of visas is not implicated, but, even if it were, the government is claiming authority to discriminate against a class of immigrants on a rational basis that is established independent of and unrelated to nationality, which only coincides with a set of nations because of other decisions made by Congress and the Secretary of Homeland Security, and which could change to a different set of nations (or, indeed, non-nations) at any time. LAVAS has no bearing here.
(4) Even if you decide that all of the above is so much sophistry dedicated to hiding an act of discrimination on the sole basis of nationality (and I’d be awfully interested in hearing a legal argument that gets you there**), the argument that the EO is illegal still falls apart. It fell apart as soon as the EO’s opponent embraced the doctrine of implied repeal, way back at the beginning. See, the whole case against the 1952 law (§ 1182(f)) depends on saying that the 1965 law (§ 1152(a)(1)(A)) supersedes it and bars nationality-based discrimination.
But, in 2015, Congress passed a law (the Consolidated Appropriations Act) that expressly created discrimination in the visa issuance process for residents of Iraq and Syria (by name) and the other “countries of concern” (by incorporation). The text of this provision is at 8 USC 1187(a)(12). That this discrimination did not bar issuance of visas, but merely created new visa-based barriers to entry for residents of the countries in question, is immaterial, at least under the legal theory advanced by EO opponents: § 1187(a)(12) is discriminatory in the same way, and against the same targets, as the supposedly illegal EO itself. So if the 1965 law repealed the relevant parts of the 1952 law to make discrimination on the basis of nationality (even coincidentally) illegal, as the EO’s opponents contend, then the 2015 law surely repealed the relevant parts of the 1965 law, and discrimination on the basis of nationality — at least against those countries — is legal again!
Patterico attempts to distinguish 1187(a)(12) from the EO itself by saying that Congress has the authority to create an exception to its own rule in 1152(a)(1)(A), but the President does not have that authority under 1182(f). This argument would be much more persuasive if it were not prefaced by an extremely broad version of implied repeal. Patterico first contends (with 1152(a)(1)(A)) that a new provision can limit an unconnected existing provision of law and eviscerate the use of the existing provision–even when the use has a rational basis that is independent of the putatively repealing statute. If implied repeal is that broad, then I think it’s hard to keep 1152(a)(1)(A) alive in the face of the newer 1187(a)(12). I don’t doubt Patterico’s motives, but I also don’t think it’s consistent for his theory of implied repeal to be hugely, super-textually broad with respect to 1152(a)(1)(A) and then suddenly narrow with respect to 1187(a)(12).
In conclusion, in order to hold that the EO exceeds the President’s authority, you have to contort 1152(a)(1)(A) to void the President’s plainly-granted power under 1182(f), you have to somehow convince a court that this is the only possible interpretation of the two laws, you have to contort your interpretation of the EO to read it as discrimination on the sole basis of nationality rather than on the perfectly justifiable rational basis of preventing terrorist infiltration from areas (nations or not) where the threat is higher, and you have to preserve 1152(a)(1)(A) from being voided by 1187(a)(12) the same way you just had 1152(a)(1)(A) void 1182(f). There are legal theories that can do one of these, maybe two. (I disagree with those theories, but they exist.) But to do all four, I think you have to contradict yourself at some point.
The President’s power to limit immigration is absolutely sweeping. (His power to expand it, conversely, is severely limited.) People are free to say that President Trump’s EO is a stupid, terrible idea that should be rescinded, in whole or in part, immediately–and Congress, incidentally, could cancel the EO by passing a law that explicitly takes this power away from Trump–but saying that the EO is currently unlawful is, I think, mistaken. I base this judgment solely on the statutes involved, not any inferences about presidential power drawn from Article II or elsewhere.
For the time being, the EO’s enforcement has been partially stayed by multiple courts. This is a correct decision. Given the great harm this EO could inflict on plaintiffs, they are entitled to judicial review of the action taken against them. Judicial review takes time, and that requires a stay of the EO. However, I am confident that the EO will ultimately be upheld by the federal judiciary, because the statutory authorization for the President is clear.
Certainly the President’s claim to be able to enact this EO is infinitely stronger than President Obama’s claim to be able to enact his unlawful DACA/DAPA programs, yet many people protesting the EO were staunch defenders of President Obama’s way-less-legal executive actions. It is a serious and growing problem in our Republic that people increasingly believe that strongly disagreeing with a law or policy makes it “illegal” or “unconstitutional.” It does not. In a Republic, our duty is not to delegitimize bad laws; that places us on a short road to the end of the rule of law and the dawn of rule by men. Our duty, rather, is exercise our rights to vote and petition the government so that bad laws are changed.
As always, I welcome rebuttals from anyone–especially actual lawyers.
*SIDEBAR: if I were a Congressman, I would occasionally name my bills with the wrong year, just to mess with people. “Vote for the Internet Neutrality Act of 1741, fellow Congressthings!”
**Conor Friedersdorf has a good argument for why the voters should regard the EO as potentially racially motivated. He’s right. But his argument is political, not legal. Courts cannot read racial animus into an Executive Order without strong evidence from within the text that there is no other justification for it.